Date: 20090611
Docket: IMM-2338-08
Citation: 2009 FC 597
Ottawa, Ontario, June 11, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
NGOC
TRANH HO
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of the Immigration Appeal Division (the IAD) of the Immigration and
Refugee Board, dated February 28, 2006, which cancelled the applicant’s stay of
removal, dismissed his appeal, and directed that the removal order be executed
as soon as reasonably practicable.
[2]
The
applicant “respectfully prays” that this application for leave and judicial
review be permitted to proceed. The applicant requests that the following
question be certified:
Should stays be always be considered to
be priori less preferable than allowance of dismissal as stays always create a
future operational burden on the Division that allowance and dismissal does
not.
1. An
order for a writ of certiorari setting aside the decision dated February
28, 2006;
2. An
order to stay any attempt to remove the applicant from Canada pending the
resolution of this matter before the Federal Court; and
3. Such
further and other relief that counsel may suggest and this Honourable Court may
deem appropriate.
Background
[3]
The
applicant, Ngoc Tranh Ho, became a permanent resident of Canada on September
25, 1984. He was born September 18, 1968 in Vietnam. The
applicant was married in Canada and has a son, although he does not have
an on-going relationship with him beyond financial child support payments.
[4]
On
October 19, 2000 the Immigration Division (ID) of the Immigration Refugee Board
issued a deportation order against the applicant because he had been convicted
of three counts of trafficking in a narcotic and three counts of proceeds of
crime and was sentenced to ten months in jail followed by two years of probation.
In October 2000 a deportation order was issued. In October 2000, the applicant
appealed the deportation order based on humanitarian and compassionate (H&C)
grounds to the Immigration Appeal Division (IAD). The appeal did not contest
the validity of the deportation order, but instead argued that pursuant to
paragraph 70(1)(b) of IRPA, that having regard to all the circumstances of the
case, the applicant should be granted special relief and not be removed from
Canada.
[5]
The
IAD Board heard the appeal on August 20, 2001. A decision was rendered the same
day. The IAD Board issued an order finding that the removal order of October
19, 2000 is in accordance with the law but ordered that the respondent’s
removal order be stayed for four years until a review by the IAD on or about
August 20, 2005.
[6]
The
stay order was made with a number of conditions, most notably that the
applicant:
-
Report
in writing to the Regional Manager, Immigration Appeals, Citizenship and
Immigration, GTEC, Hearings and Appeals (Regional Manager) starting January 22,
2002 and for every two months thereafter including a reporting form that had
details to inform the Department of Citizenship and Immigration of employment,
living arrangements, and attendance at meetings of Alcoholics Anonymous, or any
other drug or alcohol rehabilitation program with details such as date and
location of meeting.
-
Notify
the Immigration Appeal Division in writing in advance of any change in
Address.
-
Keep
the peace and be of good behaviour.
-
Report
in writing any criminal convictions FORTHWITH to the Regional Manager
-
make
reasonable efforts to seek and maintain full-time employment and immediately
report any change in employment.
-
Attend
a drug or alcohol rehabilitation program such as Alcoholics Anonymous at least
once per month. NOTE: IF YOU WITHDRAW YOUR CONSENT TO THE FOREGOING CONDITION,
YOU MUST BRING AN APPLICATION TO THE IAD FORTHWITH TO HAVE THIS CONDITION
REMOVED.
-
Respect
all parole conditions and any court orders.
-
Not
knowingly associate with individuals who have a criminal record or who are
engaged in criminal activity.
-
Not
own or possess offensive weapons or imitations thereof.
-
Refrain
from the illegal use or sale of drugs.
-
Keep
the peace and be of good behaviour and not commit further criminal offences.
[7]
On
January 2006, the IAD conducted an oral review of the stay of the respondent’s
removal order. On February 28, 2006 the IAD cancelled the applicant’s stay and
dismissed his appeal of his deportation order. The applicant seeks judicial
review of this decision.
IAD’s Reasons
[8]
The
Board found that the onus was on the applicant to show that special relief
“remains warranted” and “why he should not be removed from Canada”. The Board
member begins by outlining a number of factors that the IAD considers when
exercising its discretionary jurisdiction in removal order appeals including
the best interest of the child. The Board cites Ribic v. Canada (Minister of
Employment and Immigration), [1985] I.A.B.D. No. 4 (QL) and Chieu v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 84 in this regard.
Factors include:
(a)
The
seriousness of an offence or offences leading up to a removal order;
(b) The possibility
of rehabilitation, or alternatively, the circumstances surrounding the failure
to meet the conditions of admission;
(c)
The
length of the time spent, and the degree to which the appellant is established
in Canada;
(d) The family in
Canada and the
dislocation to the family that removal would cause;
(e)
The
family and community support available to the appellant, and
(f)
The
degree of hardship that would be caused to the appellant by the appellant’s
return to his or her country of nationality.
[9]
The
Board found that after considering these factors, the Board agreed with the
respondent that special relief was no longer warranted and that despite the
four-year opportunity provided, the applicant was not fully rehabilitated and
that there was still a risk of re-offending.
[10]
The
Board found that the “overall criminality in this case is serious” from the
perspective of the offences prior to the deportation order and the subsequent
criminal convictions for impaired driving and failure to provide a sample as
well as offences for trespass and speeding. The Board stated that the trespass
and speeding offences breached the conditions of the IAD “to keep the peace, be
of good behaviour, and not commit further criminal offences”.
[11]
The
Board then goes on to address the issue of drug and alcohol abuse and the IAD
conditions to receive treatment at least once a month. The Board was not
persuaded “that the appellant has attended or, if he has, that he has taken it
seriously” because the applicant had not provided documentation that
corroborates his attendance in any kind of rehabilitation program. The Board
also finds it implausible that the applicant “attended and appreciated” the rehabilitation
program because during the oral hearing the applicant had not heard of a link
between alcohol and crack abuse. He finds on a balance of probabilities that
the applicant breached his conditions regarding cocaine as well.
[12]
The
Board found that the applicant was not established culturally or financially in
Canada despite
being here for over 20 years. In particular, the Board noted that the applicant
was unable to communicate in an official language of Canada during the
hearing and also noted that the applicant’s work has been mainly low wage.
[13]
The
applicant’s return to Vietnam would not be a hardship
according to the Board. Similar low wage work could be found in Vietnam.
[14]
Insofar
as family factors, the Board weighed the different familial responsibilities
and relationships in the applicant’s life. He noted that the applicant has more
family in Vietnam than in Canada, however, he does have a 15 year old child
in Canada that he has
been financially supporting although he maintains no real on-going contact. The
Board noted that another significant relationship was one that the applicant
had developed with his common-law girlfriend and her children.
[15]
Despite
the familial ties, the Board found that nevertheless, the negative factors in
this analysis substantially outnumbered the positive ones.
Issues
[16]
The
applicant submitted the following issues for consideration:
1. Did the Board member
err on the face of the record and err in fact in dismissing this appeal on
February 28, 2006?
2. Did the Board member
exceed his jurisdiction and was he concerned with irrelevant considerations in
dismissing his appeal on February 28, 2006?
[17]
I
would rephrase the issues as follows:
1. What is the standard
of review?
2. Did the IAD Board
err in fact when considering the evidence on breach of conditions on the stay
of removal?
3. Did the IAD err in
law when he stated that stays should always be considered to be priori
less preferable than allowance or dismissal?
Applicant’s Submissions
[18]
The
standard of review is that of reasonableness when considering decisions that
require discretion and relief and they should be granted under paragraph
18(4)(d) of the Federal Courts Act. The applicant submits that questions
of law such as the IAD’s considerations of the Ribic above factors on
the evidence are reviewed on a standard of correctness.
[19]
The
applicant raises two issues in this judicial review. One, that the IAD Board
made “fundamental” errors in reviewing the evidence. Two, that the Board made
the decision on the basis of an erroneous standard of the law that does not
exist.
[20]
First,
the applicant takes particular issue with the conclusions that the Board drew
from the oral hearing regarding the applicant’s alleged use of crack and
alcohol. The applicant notes the excerpt:
Member:...when was the last time you used
crack?
Answer: 1997/1998.
Member: Do you see any link between
alcohol and crack?
Answer: I do not understand your question
– can you please explain more about that...
Member: Well I am asking the
questions...has anyone told you that cocaine abuse can be triggered by alcohol
abuse?
Answer: No I have not heard.
Member: No one ever told you that?
Answer: No.
Member: I see.
Cross examination by Mr. Consky: Since 2001
have you drank alcohol on a regular or occasional basis?
Answer: Only New Year’s day – 1 to 2
bottles.
Mr. Consky: 1 to 2 bottles of what?
Answer: bottles of beer.
[21]
The
applicant is particularly bothered by the conclusions drawn by the Board and states
that it is a perverse, incorrect and unsubstantiated finding from this
testimony. The applicant submits that the Board erred when it used this
evidence to find that the applicant was using crack during his stay and appeal.
The finding that the applicant had not attended rehabilitation for drug and
alcohol abuse was the second error in the submissions. The applicant states
that the one question and the one answer regarding the applicant’s awareness of
the link between alcohol and crack abuse do not make it implausible that the
applicant did not attend drug rehabilitation and that the applicant provided
documentation nonetheless.
[22]
The
applicant suggests that there were many other problems with the Board’s
analysis of the evidence as well as instances where factors were not considered
altogether such as the offence leading to deportation.
[23]
Finally,
the applicant submits that the Board was wrong “to concern himself with the
“burden” of stays” and exceeded his jurisdiction when he did so. The Board
member’s understanding of a purpose of a stay is erroneous in law, incorrect
and not supported by legislation or policy.
Respondent’s Submissions
[24]
The
respondent submits that findings of fact are reviewed with significant
deference and as such a standard of review is that of reasonableness (see Bielecki
v. Canada (Minister of Citizenship and Immigration), 2008 FC 442 and Thach
v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 834 and must
meet the standard of paragraph 18.1(4)(d) of the Federal Courts Act. The
respondent outlined the jurisprudence and legislation in the area of IAD
decisions on stay of removal orders. The legislative scheme and principles with
respect to IAD appeals was stated as in Canada (Minister of
Citizenship and Immigration) v. Stephenson, 2008 FC 82.
Jurisprudentially, Chieu above, was cited for the onus that exists on a
permanent resident who is ordered deported to establish why he or she should be
allowed to remain in Canada. The Ribic above factors are also
noted in this analysis.
[25]
The
respondent submits that since the applicant’s arrival into Canada he has
engaged in “significant and serious” criminality both before the IAD decision
to deport the applicant and after the IAD decision which stayed his removal
with conditions and with a review in four years.
[26]
The
most relevant terms and conditions from the IAD decision are (i) attend a drug
and rehabilitation program; and (ii) keep the peace and be of good behaviour
and not commit further criminal offences.
[27]
The
respondent notes that Madam Justice Dawson, in Stephenson above,
recently concluded that it was open to the IAD to consider whether offences
under the Highway Traffic Act like speeding were “ keeping the peace and
be of good behaviour” issues.
[28]
The
respondent submits that contrary to the applicant’s submissions, the IAD Board
was aware that the applicant did not have any further criminal convictions
beyond 2001 and stated it in the reasons and although the Board had erred in
stating the trespass offence occurred when it did, it was not an error that was
material.
[29]
In
respect of the decision regarding the applicant’s efforts at rehabilitation,
the respondent submits that the IAD ordered that he attend a drug or alcohol
rehabilitation program because the applicant had admitted during the course of
his appeal in August 2001 that he had abused crack cocaine. The respondent
submitted that it was reasonable to conclude that the applicant did not attend
a program, but even if this assumption was made, the applicant arguably did not
take it seriously as the applicant stated he only went once a month for six
months and could not provide documentary evidence to collaborate this claim.
[30]
Familial
factors and degree of hardship in returning to Vietnam were another
area of analysis where the respondent submits that the Board’s findings were
based on the evidence and reasonable to make.
Analysis and Decision
[31]
Issue
1
What
is the standard of review?
Last year,
the Supreme Court of Canada in Dunsmuir v. New
Brunswick, [2008] S.C.J. No. 9, clarified the approach and standards
to be applied to decisions in the review of administrative decisions.
[32]
The approach involves determining whether jurisprudence has
already found the standard of review to be applied in similar circumstances.
The issues submitted by the applicant involved not only a review of the facts
put forward in the documentation but also how those facts should be regarded in
accordance with federal legislation under both the Federal Courts Act
and IRPA as interpreted by relevant jurisprudence. Since Dunsmuir above,
there have already been numerous decisions on what standard to apply to
questions of mixed facts and law including Ramanathan v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 546 and Erdogu v. Canada
(Minister of Citizenship and Immigration), [2008]
F.C.J. No. 546 which state a consensus towards the standard of reasonableness.
Therefore, this issue put forward by the applicant is reviewed on the standard
of reasonableness.
[33] At paragraph 47 of Dunsmuir
above, reasonableness has been articulated as:
…a deferential standard animated by the principle that underlies
the development of the two previous standards of reasonableness: certain
questions that come before administrative tribunals do not lend themselves to
one specific, particular result. Instead, they may give rise to a number
of possible, reasonable conclusions. Tribunals have a margin of
appreciation within the range of acceptable and rational solutions. A
court conducting a review for reasonableness inquires into the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes. In judicial review, reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process. But it is also concerned with whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[34]
The applicant also submits questions of law in this review,
particularly the comment by the Board in the decision which suggests that
dismissals or allowances are preferable to stays. I agree that this point is
reviewable on the standard of correctness. It involves an evaluation of whether
this principle exists in the law or not. The former question, however, is
reviewable on a standard of reasonableness given that it intertwines the
evidence with the law as in Dunsmuir above.
[35]
Issue
2
Did the IAD Board err in
fact when considering the evidence on breach of conditions on the stay of
removal?
The Board in this case seemed
primarily focused on the factors of drug and alcohol abuse and criminality in
making its decision. The applicant submits that there were either errors of
fact or errors in analyzing these facts.
[36]
Serious
criminality features prominently in this decision. The applicant submits that
the traffic offences do not amount to serious criminality. Based on the facts
of this case, I agree. The mere fact that a person has a speeding conviction
does not alone lead to a finding of serious criminality. The other offence
noted by the Board was a trespassing offence which occurred before the stay
order came into effect.
[37]
The
Board then suggests that they are not convinced that the applicant has been
rehabilitated from drug and alcohol problems. In my opinion, the documentation
put forward by the applicant on his treatment following his stay conditions to
obtain treatment once a month is sparse. As well, the applicant was to provide
reports every two months regarding his rehabilitation as well as notifying
immigration officials if he had discontinued his treatment; none of this was done.
The Board, however, did not draw their conclusions there. The Board instead
focused on the applicant’s testimony in the oral hearing about whether he was
aware of the link between alcohol and crack abuse. I cannot accept that this is
reasonable. There is no indication that the applicant continues to have
problems in this regard aside from a nebulous assessment of the applicant’s
understanding of abuse from a clinical perspective. While factual findings do
require a high degree of deference, I am of the opinion that the judicial
review application should be granted on this ground. The decision of the Board
‘s finding was not reasonable on this point and the Board’s decision is based
in part on this conclusion.
[38]
Because
of my finding on this issue, I will not deal with the other issue.
[39]
The
respondent did not propose a question for my consideration for certification.
The applicant did propose a question as noted above. I am not prepared to
certify the question as it is not determinative of the outcome of this case.
[40]
The
applicant requested costs, however, I am not prepared to order costs as I find
no special reasons exist.
JUDGMENT
[41]
IT
IS ORDERED that:
1. The application for
judicial review is allowed and the matter is referred to a different panel of
the Appeal Division of the IAD for redetermination.
2. There shall be no
order for costs.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Subsection
63(2), section 66, subsections 67(1), 68(1), (2) and (3) of the Immigration
and Refugee Protect Act, S.C. 2001, c. 27 read
as follows:
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63. . . .
(2) A foreign
national who holds a permanent resident visa may appeal to the Immigration
Appeal Division against a decision at an examination or admissibility hearing
to make a removal order against them.
66. After considering the appeal of a
decision, the Immigration Appeal Division shall
(a) allow the
appeal in accordance with section 67;
(b) stay the
removal order in accordance with section 68; or
(c) dismiss
the appeal in accordance with section 69.
67.(1)
To allow an appeal, the Immigration Appeal Division must be satisfied that,
at the time that the appeal is disposed of,
(a) the
decision appealed is wrong in law or fact or mixed law and fact;
(b) a
principle of natural justice has not been observed; or
(c) other than
in the case of an appeal by the Minister, taking into account the best
interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
. . .
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.
(3) If the Immigration Appeal Division
has stayed a removal order, it may at any time, on application or on its own
initiative, reconsider the appeal under this Division.
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63.
. . .
(2)
Le titulaire d’un visa de résident permanent peut interjeter appel de la
mesure de renvoi prise au contrôle ou à l’enquête.
66.
Il est statué sur l’appel comme il suit :
a)
il y fait droit conformément à l’article 67;
b)
il est sursis à la mesure de renvoi conformément à l’article 68;
c)
il est rejeté conformément à l’article 69.
67.(1)
Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
a)
la décision attaquée est erronée en droit, en fait ou en droit et en fait;
b)
il y a eu manquement à un principe de justice naturelle;
c)
sauf dans le cas de l’appel du ministre, 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.
. .
.
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.
(3)
Par la suite, l’appel peut, sur demande ou d’office, être repris et il en est
disposé au titre de la présente section.
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