Date: 20090729
Docket: IMM-5654-08
Citation: 2009 FC 778
Ottawa, Ontario, July 29, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
and
RAJWANSH
NIJJAR
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a
decision of the Immigration and Appeal Division (IAD) of the Refugee Division
of the Immigration and Refugee IAD, dated December 9, 2008 (Decision) granting
the Respondent’s application for a stay of a removal order.
BACKGROUND
[2]
The
Respondent is a citizen of India and was born on June 26, 1980. She entered
Canada illegally
with a false passport at Vancouver International Airport on May 11,
2002. She was determined to be a Convention refugee in Canada on January 30,
2004.
[3]
The
Respondent applied for permanent resident status in Canada as a
protected person, but no final determination of that application has been made
to date.
[4]
The
Respondent married Kulwant Singh Bhathal on March 3, 2007. Her daughter, Kirat
Bhathal, was born on November 13, 2007.
[5]
The
Respondent was convicted in BC Supreme Court in Vancouver, on June 22,
2007 of three charges: aggravated assault; assault with a weapon; and unlawful
confinement. She was sentenced on September 17, 2007 to serve six months and 10
months concurrently in jail.
[6]
On
January 2, 2008, a CBSA Enforcement Officer reported the Respondent for
inadmissibility due to serious criminality pursuant to subsection 36(1)(a) of
the Act relating to her three convictions. On January 10, 2008, in a CIC Report
to File, a CBSA enforcement officer recommended that “CBSA proceed, if necessary,
after the appeal with getting a danger opinion issued against her.”
[7]
A
deportation order was made against the Respondent on April 7, 2008.
[8]
The
Respondent appealed the deportation order to the IAD solely on the basis that
humanitarian and compassionate considerations warranted special relief in light
of the circumstances.
[9]
The
IAD hearing was held on November 25, 2008, with the IAD rendering an oral
decision and reasons staying the removal order for three years. The IAD issued its
Decision on December 9, 2008.
[10]
The
IAD determined that the Respondent should receive a stay of the deportation
order for three years on certain terms and conditions.
DECISION UNDER REVIEW
[11]
The
IAD examined the factors in Ribic v. Canada (Minister of Employment and
Immigration), [1985] I.A.B.D. No. 4 and noted that the offences arose out
of a three-on-one attack which involved planning and pre-meditation on the part
of the Respondent and her co-accuseds (family members) towards a relative, a
person who was in a trust relationship with them. The incident involved
violence, with a weapon being used against a woman, and only by luck did it not
result in any serious physical injuries to the victim, although there was
emotional trauma. The Respondent also refused to acknowledge any degree of
involvement or culpability for the offences and alleges that there is a
conspiracy in the criminal justice system against her. The Respondent had also
not taken any therapy or rehabilitation programs. The IAD noted that these
factors did not weigh in the favor of the Respondent.
[12]
The IAD did note, however, that the Respondent’s risk to
society is low. She only has the three convictions and there was no evidence of
any violent acts, either in India or in Canada, prior or
subsequent to her convictions. She has also been fully compliant with all of the
terms of her bail after her charge and with her release provisions on parole.
The Respondent does not live with, or have any association with, the family
members who were her co-conspirators. Based on the pre-sentence report, those
family members were considered to have had a serious influence upon her.
[13]
The IAD discussed how the Respondent currently lives with
her baby and her husband and his extended family. The extended family members
do not believe that the Respondent is guilty of the offences of which she is
convicted and they support her appeal.
[14]
The IAD noted that the Respondent, in her six years in Canada, has worked
hard to establish herself. She has also married and has a child who is a Canadian
citizen. She has been a full-time worker (with the exception of her time in
jail) and her limited English has not inhibited her ability to interact in
Canadian society.
[15]
The IAD considered the effect on the Respondent’s family
members if she is removed from Canada. The Respondent has a partial dependence
on her extended family financially. The IAD concluded that, if the
Respondent were removed from Canada, “her husband and child…would
both be affected both financially and emotionally if they were separated.” It
was assumed that the funding from the Respondent’s contribution to the purchase
of the family’s truck would cease if she was deported.
[16]
The IAD also noted the best interests of the Respondent’s
child, who was one years old at the time of the Decision. The IAD thought that
it was best for a child to be raised by both parents and, if returned to India as a young
child, the Respondent’s daughter would require ongoing medical care and would
need to access education, which are not fully available in India.
[17]
There was also evidence before the IAD that the family would
face financial hardship if returned to India as well as potential
danger, since threats to the Respondent from her own family members had been
the foundation of her claim for Convention refugee status.
[18]
The IAD acknowledged that the Respondent had spent most of
her life in India, was educated there, speaks the language
and was fully integrated into that society. However, she was a Convention
refugee from that country and it would not be easy for her to be removed to
that country nor any other country where she might be removed. The Respondent’s
only country of removal would be “to the country where she has an acknowledged
danger.” Therefore, the IAD accepted that the appellant “would incur a
reasonably significant amount of difficulty if she were removed from Canada.”
[19]
The IAD concluded as follows:
After having considered all of those
factors, I have to say, Ms. Nijjar, that yours would have been the type of
appeal which I would have allowed had it not been for the fact that you were
involved in a very serious set of circumstances and that you refused today to
accept any responsibility whatsoever for any involvement in that crime for
which you have been found guilty. Therefore, because of the seriousness of that
factor, the offence you were involved with and your unwillingness to
acknowledge any degree of responsibility for your own behaviour to whatever
extent, I am not prepared to allow your appeal. However, I also came to the
conclusion that a number of other positive factors in your appeal mitigate
against a full dismissal. Therefore, I am going to order a stay of removal on
terms and conditions. This will give you an opportunity, Ms. Nijjar, to
demonstrate that you are not at risk to Canadian society and that your family
support and the efforts that you have made to separate yourself from those
negative influences in your life have been effective.
I am going to order a stay of removal for
three years because I believe that you need sufficient time to demonstrate that
you will not be a further risk to Canadian society.
ISSUES
[20]
The
Applicant submits the following issue:
1)
The
IAD erred in law in considering hardship in a country of removal where the
Respondent is protected from refoulement under subsection 115(1) of the Act.
STATUTORY PROVISIONS
[21]
The
following provisions of the Act are applicable to these proceedings:
|
115. (1)
A protected person or a person who is recognized as a Convention refugee by
another country to which the person may be returned shall not be removed from
Canada to a country where they would be at risk of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion or at risk of torture or cruel and unusual treatment or
punishment.
|
115. (1) Ne peut être renvoyée dans un pays
où elle risque la persécution du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques, la torture ou des traitements ou peines cruels et inusités, la
personne protégée ou la personne dont il est statué que la qualité de réfugié
lui a été reconnue par un autre pays vers lequel elle peut être renvoyée.
|
STANDARD OF REVIEW
[22]
The
Applicant submits that the consideration of hardship of an applicant where the
deportation order does not specify the country of removal, and where it is
uncertain what that country might be, is a question of law, to be reviewed on a
standard of correctness: Balathavarajan v. Canada (Minister of Citizenship
and Immigration), [2006] F.C.J. No. 1550 (F.C.A.) (Balathavarajan)
at paragraph 5.
[23]
The
Respondent submits that the Federal Court’s role in judicial review proceedings
is not to substitute its assessment of the evidence for that of the IAD.
Rather, its constitutional mandate is limited to assessing whether the IAD’s
decision observes the limits set out in the relevant legislation. See: Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of
Labor),
[2003] 1 S.C.R. 539.
[24]
The
Respondent submits that the standard of review in this judicial review is that
of reasonableness, as it is concerned primarily with the existence of
justification, transparency and intelligibility within the decision-making
process. It is also concerned with whether the Decision falls within the range
of possible acceptable outcomes which are defensible in respect of the facts
and law. See: Shah v. Canada (Minister of
Citizenship and Immigration) 2008 FC 708 and Dunsmuir v. New
Brunswick 2008 SCC 9 at paragraph 47.
[25]
The
issue raised by the Applicant involves an error of law that I have reviewed
under a standard of correctness. See Balathavarajan.
ARGUMENTS
The
Applicant
IAD
Erred in Considering Likely Country of Removal
[26]
The
Applicant submits that, since the Respondent was found to be a Convention
refugee on January 29, 2004 by the Refugee Protection Division, the IAD member
erred in law in concluding that the Respondent would face hardship upon removal
to India. Pursuant to
section 115 of the Act, a protected person who is recognized as a Convention
refugee cannot be removed from Canada to a country where they would be at risk
of persecution.
[27]
The
Applicant relies upon Chieu v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 84 at paragraphs 32, 33, 58 where the Supreme
Court of Canada confirmed that potential foreign hardship can be taken into
account by the IAD in deciding whether to uphold a deportation order. The
Supreme Court of Canada also held that the IAD should be able to consider
realistic possibilities, such as conditions in the likely country of removal,
even where the ultimate country of removal is not known with absolute certainty
at the time the appeal is heard. The Supreme Court of Canada also held,
however, that the likely country of removal may not be ascertainable for
Convention refugees because of section 53 of the former Immigration Act
(now s.115 of the Act) which prohibits a Convention refugee’s removal to a
country where that person’s life or freedom would be threatened. In such cases,
there would be no likely country of removal at the time of the appeal;
therefore, the IAD cannot consider foreign hardship.
[28]
The
Applicant says that if the IAD cannot ascertain a “likely country of removal”
there is no need to consider this issue. When and if a destination country is
decided upon, the hardship issue may then be addressed in the appropriate
forum. The Applicant also relies upon Balathavarajan at paragraphs 5-10
and notes that the following certified question on this issue was answered in
the negative:
Is a deportation order, with respect to a
permanent resident who has been declared to be a Convention refugee, which
specifies as sole country of citizenship the country which he fled as a
refugee, sufficient without more to establish that country as the likely
country or removal so that Chieu applies and the IAD is required to
consider hardship to the applicant in that country on an appeal from a
deportation order?
[29]
The
Applicant submits that the IAD erred in concluding that the Respondent would face
hardship upon removal to India. The IAD also acknowledged that there was
no evidence before the tribunal of any other country of removal. The Respondent
did not show, on a balance of probabilities, that she would be deported to India and, because
she is a Convention refugee, she remains protected from refoulement under
section 115 of the Act. Therefore, the IAD erred in law in considering foreign
hardship in India when it is
not a “likely” country of removal at the time of the appeal.
[30]
The
Applicant also submits that the Respondent has failed to address the sole issue
raised by the Minister, particularly since the Minister is not arguing the
reasonableness of the IAD’s Decision, nor the weight of the factors considered
by the IAD in finding that there were sufficient H&C grounds to warrant
special relief. The sole ground is an error of law made by the IAD in
considering hardship in a country of removal where the Respondent was protected
from refoulement under subsection 115(1) of the Act.
[31]
The
Applicant notes that the Respondent suggests that the IAD’s analysis of
“hardship” with respect to removal from Canada should be distinguished from any
analysis of hardship of return to India arising from a nexus to
the Convention refugee definition. The Applicant suggests that this is
“precisely the error made by the IAD” since the IAD concerned itself with
hardship of removal to India, acknowledging that it may be difficult to
remove her to a country where she has been accepted as a Convention refugee.
Again the Applicant stresses that, because of Balathavarajan at
paragraph 7, the IAD cannot ascertain a “likely country of removal” for
Convention refugees because of the non-refoulement provision in section 115 of
the Act. Therefore, there was no need for the IAD to consider this issue.
The
Respondent
[32]
The
Respondent submits that the IAD considered the major factors in the Respondent’s
favour to be the following:
1)
The
best interests of her Canadian-born child;
2)
She
has no criminal convictions either before or after the subject convictions;
3)
She
has been fully compliant with the terms of bail after her charge and release on
parole subsequent to serving her time in jail;
4)
She
is no longer living, or having any association, with the family members who
were her co-conspirators;
5)
She
lives with her baby, her husband and his extended family in a separate
lifestyle from that which she previously led, namely one in which her
co-conspirators were considered to be a serious influence upon her;
6)
Her
family is supportive of her and her stability in the community is likely to be
a positive influence on her;
7)
Her
risk to society is low;
8)
She
has been hardworking during her life in Canada;
9)
If
she were removed from Canada without her husband and child, they would be
affected both financially and emotionally if they were separated.
[33]
The
Respondent says that the Decision was based on a “fulsome analysis of all of
the Ribic factors.” The Respondent also contends that the Applicant has
“failed to establish that this decision does not fall within a range of
possible acceptable outcomes available to the IAD.” She also says that “the
Applicant has failed to establish that the application of the Ribic
factors in this particular case amounts to a substantial legal error in the IAD
Decision.”
[34]
The
Respondent notes that this Court has cautioned that its role is “not to parse a
tribunal’s reasons but rather to seek to understand what fundamentally
motivates the decision relying on the record as substantiation.” The question
is whether the IAD’s reasons, taken as a whole, are tenable as support for the Decision.
See: Burianski v. Canada (Minster of Citizenship
and Immigration) 2002 FCT 826 at paragraph 40; Law Society of
New Brunswick v. Ryan 2003 SCC 20 (Ryan) at paragraph 56 and Diallo
v. Canada (Minister of
Citizenship and Immigration) 2004 FC 1450 at paragraphs 22-32.
[35]
The
Respondent contends that consideration of the Ribic factors led the IAD
to its conclusion. If any of the reasons are sufficient to support the
conclusion, then the Decision will not be unreasonable and the Court must not
interfere: Ryan.
[36]
The
Respondent insists that the IAD gave numerous “tenable explanations for its
Decision” and that the “IAD’s analysis of Ms. Nijjar’s ‘hardship’ with respect
to removal from Canada should be distinguished from any analysis of hardship of
return to India arising from a nexus to the Convention refugee definition.” The
Respondent states that the IAD deals with the hardship the Respondent and her
family would incur if she were removed from Canada, rather than if she were
removed to India.
[37]
The
Respondent submits that by not proceeding with the application for a danger
opinion prior to the hearing of the Respondent’s appeal, the principles in Chieu
(and relied upon by the Applicant) have been undermined.
ANALYSIS
[38]
There
is little doubt, in my view, that the IAD erred in considering hardship upon
removal to India as one of
the Ribic factors in this case. Pursuant to section 115 of IRPA, the
Respondent cannot be removed to India because she has been
recognized as a Convention refugee from that country.
[39]
As
the Applicant points out, the Supreme Court of Canada in Chieu made it
clear that the likely country of removal may not be ascertainable for
Convention refugees because of section 53 of the former Immigration Act
(now, s. 115 of IRPA). In such cases there will be no likely country of removal
at the time of the appeal and the IAD cannot, for that reason, consider foreign
hardship. See Chieu at paragraphs 32, 33 and 58.
[40]
More
recently, the Federal Court of Appeal in Balathavarajan considered the
issue and made it clear that Chieu applies in situations such as
the present:
7 However,
Iacobucci J. also stated, at para. 58, that the likely country of removal may
not be ascertainable for Convention refugees because section 53 of the former Immigration Act (now,
section 115 of the IRPA) prohibits a Convention refugee's removal "to a
country where the person's life or freedom would be threatened for reasons of
race, religion, nationality, membership in a particular social group or
political opinion", unless the individual falls within a particular
enumerated class and the Minister is of the opinion that the individual
constitutes a danger to the public in Canada, or a danger to the security of
Canada. The Court said, "In such cases, there will be no likely country of
removal at the time of the appeal and the IAD cannot therefore consider foreign
hardship." Consequently, if the IAD cannot ascertain a "likely
country of removal", there is no need to consider this issue. When and if
a destination country is decided upon, the hardship issue may then be addressed
in the appropriate forum.
8 The appellant
points to the decision in Soriano
v. Canada (Minister of Citizenship and Immigration) (2003), 29 Imm. L.R. (3d) 71 (F.C.T.D.),
to contend that the IAD has a duty to consider potential hardship in this case.
In Soriano, a
Convention refugee was the subject of an unexecutable deportation order to El Salvador, the country from which he fled.
Campbell J. held, at para. 8, that the IAD erred when it failed to take
potential hardship to the applicant into consideration given that the
deportation order provided El Salvador was the country of deportation.
9 Soriano, supra, can be
distinguished from the case at bar. In Soriano, the country of deportation was
known. Here, the Minister had not specified the country of deportation, and at
the time of the IAD appeal had not taken the necessary steps under subsection
115(2) of the IRPA to remove the appellant. It was, at the time of the IAD
appeal, not only unlikely but legally improper to remove the appellant to Sri Lanka. For the IAD to consider potential hardship the appellant
might face if deported to Sri
Lanka would have been a
hypothetical and speculative exercise. This it need not do.
[41]
The
Respondent does not really take issue with this position or the fact that the
Officer made a mistake in this regard. The Respondent argues, however, that the
mistake should not require reconsideration because the Decision was reasonable
and can stand alone on the Officer’s findings with regard to the other five Ribic
factors.
[42]
I
agree with the Applicant that the Officer’s error was an error of law and
should be reviewed under a standard of correctness. See Balathavarajan
at paragraph 5. However, irrespective of the standard of review, this Decision
must be sent back for reconsideration. I have reviewed the Decision carefully
and the hardship for the Respondent and her family upon removal to India was clearly
a significant factor that the Officer took into account when weighing all of
the Ribic factors. It is just not possible to say that the Decision
would have been the same had the Officer not acted in error, or that it is
otherwise reasonable.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This application
is allowed and the matter is returned for reconsideration by a different
officer;
2. There is no
question for certification.
“James
Russell”
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