Date: 20091112
Docket: IMM-1685-09
Citation: 2009 FC 1154
Ottawa, Ontario, November 12,
2009
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
ISMAEL
OMAR AWALEH
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application submitted by the Minister of Citizenship and Immigration (the
Minister), pursuant to section 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a
decision rendered by the Immigration Appeal Division of the Immigration and
Refugee Board (the IAD) to continue the stay of a removal order issued against
the respondent, Mr. Awaleh (the impugned decision).
[2]
The
Minister asserts that the IAD’s decision is an unreasonable exercise of their
discretion, having regard to the facts and the materials which were before it.
For the reasons that follow, the application for judicial review must fail.
I. Background
[3]
Mr.
Awaleh is a permanent resident who was born in Somalia on January
1, 1982, and who landed in Canada on October 21, 1996, at the age of fourteen.
His mother died when he was only four years of age and he has little to no
contact with his father, who resides in Toronto, or his brother, who resides in
Calgary. He is the
father of two young boys, one of which was just recently born, both of whom are
under the age of five, and he has been in a common-law relationship with the
mother of his children for approximately five years. Mr. Awaleh has admittedly
struggled with an addiction to drugs for many years, and since 2002 he has had
a number of interactions with law enforcement, as well as immigration,
officials as a result of his criminal behaviour. Mr. Awaleh has also
participated in various drug rehabilitation and anger management programs with
some level of success.
[4]
On
March 8, 2007, the Immigration Division of the Immigration and Refugee
Protection Board (the ID) issued a removal order against Mr. Awaleh pursuant to
subsection 36(1)(a) of the Act, which provides that a permanent resident is
inadmissible to Canada if they have been “convicted in Canada
of an offence under an Act of Parliament punishable by a maximum term of
imprisonment of at least 10 years.” The basis of the removal order issued
against the respondent is a conviction, registered on June 2, 2004, for robbery
and for theft over $5,000 pursuant to sections 344 and 334(a) of the Criminal
Code, R.S.C. 1985, c. C-46.
[5]
Mr. Awaleh appealed this removal order pursuant to subsection
63(3) of the Act. At no time has the validity of the removal order been
challenged. The appeal brought by the respondent sought to have the removal
order dismissed or stayed on humanitarian and compassionate grounds.
[6]
On
May 12, 2008, the IAD granted Mr. Awaleh a stay of three years with terms and
conditions. This means that while Mr. Awaleh is not compelled to leave to country,
his appeal of the removal order has not been conclusively determined. The
decision to grant a conditional stay was based on a joint recommendation made by
the Minister and Mr. Awaleh’s counsel, as well as on a finding that there were
“sufficient humanitarian and compassionate considerations, taking into account
the best interest of the child directly affected by its decision, warranting
special relief in light of all the circumstances of the case”.
[7]
In
granting the stay, the IAD considered the following factors, set out in Ribic
v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4
at paragraph 14 (Ribic), and confirmed by the Supreme Court of Canada in
Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3:
the seriousness of the offences leading to the deportation order; the
possibility of rehabilitation; the length of time spent in Canada and the
degree to which the appellant is established here; the family in Canada and the
dislocation to the family that deportation would cause; support available to
the appellant, within the family and within the community; and potential
foreign hardship the appellant would face in the likely country of removal.
[8]
The
IAD noted that Mr. Awaleh was “drug and alcohol free,” that he had made efforts
to rehabilitate himself, that he was working and that he had developed strong
ties to his child and common-law wife. In addition, however, the IAD noted a
few of Mr. Awaleh’s flaws, such as his previous criminal charges, which include:
failure to comply with probation orders, escape from custody and obstruction of
a police officer as well as a charge of assault against his common-law wife
from July 2006. The IAD noted that the root of Mr. Awaleh’s legal problems is
found in his addiction to alcohol and crack cocaine.
[9]
The
terms and conditions of the stay included, inter alia, not committing
any criminal offences; keeping the Canadian Border Services Agency (CBSA) and
the IAD informed of any changes in address, criminal charges or criminal
convictions; reporting to the CBSA, monthly, with updates on employment,
marital status and any attendance or participation in therapy or rehabilitation
programs; respecting all parole conditions and court orders and keeping the
peace and being of good behaviour.
[10]
The
events which culminated in the decision under review are as follows:
[11]
Sometime
around late May 2008, Mr. Awaleh was kicked out of the home he shared with his
common-law wife. In June 2008, Mr. Awaleh was charged for possession and
trafficking of crack cocaine as well as three counts of breaching his
undertakings given with respect to his criminal convictions.
[12]
On
July 7, 2008, as a result of the charges filed in June 2008, Mr. Awaleh was
remitted for detention by the ID for breach of his stay conditions. On August
8, 2008, the ID upheld the decision to detain Mr. Awaleh preventatively given a
concern that he could be a flight risk, but in so concluding, the Member noted
that “the main problem that seems to cause all the other problems is …[Mr.
Awaleh’s] relation with drugs”.
[13]
Mr.
Awaleh was offered the opportunity to be released from detention in September
2008 on the condition that he attend the Anchorage
rehabilitation program. Due to the program being located in an area of the city
Mr. Awaleh was prohibited, by the criminal courts, from frequenting, he was
unable to attend the program and therefore unable to take advantage of his
release. A subsequent detention review hearing was held on October 16, 2008,
wherein the Member sitting for the ID ordered Mr. Awaleh to be released to the
Ottawa Mission, an organization that offers a drug treatment program, on
condition that, inter alia, his common-law wife post a cash bond; he did
not consume any controlled substance unless prescribed by a physician; he
agreed to undergo a 30-day stabilization program conducted by the Ottawa
Mission; if found eligible, he agreed to complete a five-month rehabilitation
program at Life House; and finally, if not found eligible for Life-House, he
agreed to notify CBSA immediately.
[14]
Mr.
Awaleh agreed to the above conditions. Upon release in mid October 2008, he
completed the stabilization program and then attempted to enrol in the Life
House rehabilitation program. At that time the Life House was fully booked, so
Mr. Awaleh enrolled in Sobriety House, a residential program for addicts, which
was a temporary solution while he waited for an opening in the Life House
program.
[15]
On
December 12, 2008, Mr. Awaleh successfully completed the 28 day Sobriety House
program, after which he moved back in with his common-law wife.
[16]
On
December 23, 2008, Mr. Awaleh celebrated the successful completion of his rehabilitation
programs by consuming alcoholic beverages. This resulted in him blacking out
and incurring additional charges for assault, uttering threats, break and enter
and mischief. As a result of these charges, Mr. Awaleh was again detained.
II. The Impugned
Decision
[17]
In
November 2008, at the request of the Minister, an oral review hearing date was
set for January 15, 2009 to reconsider the stay granted on May 12, 2008. On
March 13, 2009 the IAD issued their decision, which ordered a continuation of
the stay of the execution of the removal order for one year.
[18]
In
so concluding, the IAD explicitly referred to the Ribic factors, and
made the following findings:
[12] [With regard to the seriousness
of the offence leading to the deportation order]...the specific offence
identified in the deportation finding was a conviction for robbery in June 2004
pursuant to Section 344 of the Criminal Code of Canada. There are a
number of additional convictions since that date which include a conviction in
June 2008 for trafficking in crack cocaine, possession of property obtained by
crime and failure to comply with release conditions.
…
[15] While the panel acknowledges
that there are outstanding charges, the registered convictions against Mr.
Awaleh represent serious crimes, some of which carry a threat to the general
public. This is a negative consideration. In making this finding, the panel
also notes that the June 2008 offences constitute a breach of the conditions
contained in the May 12, 2008 stay order.
…
[17] [With regards to the
possibility for rehabilitation, Mr. Awahleh ] … attended Sobriety House for 30
days and exited on December 12, 2008. He then “celebrated” his success at the
rehabilitation programs by drinking “several cups of wine”. It was the drinking
that he says precipitated the outstanding criminal charges against him. He also
says that he did not think of himself as having any problem with alcohol and
that as long as he was not taking drugs then it was “OK”.
[18] This is a negative factor in
this review hearing given his history. Yet, the appellant testified that he was
off “the drugs” and intended to stay away from alcohol as well. He testified
that he had made considerable effort to contacting rehabilitation programs
which evidence the panel accepts, that the Life House program was fully-booked
and he did attend two programs in late 2008. He also testified that when he is
released from detention he will continue to pursue rehabilitation at the Life
House program. The panel accepts these statements of intention bearing in mind
his demeanour at the hearing which was candid and embarrassed at the
non-compliance.
[19] …In the circumstances, his
connection to his partner, her concern for him and her approach to dealing with
him indicate that rehabilitation is a real possibility in his life. This,
therefore, is a positive factor.
[20] [With regards to the length of
time and establishment in Canada,] …[t]he appellant came to Canada when he was
14 years old and testified that he has no connection whatsoever with Somalia,
his country of origin. He has worked in Canada at three jobs, resided here since his
arrival and established a family…
[21] [With regards to the impact in
the event of his removal,] …[w]hile there was no corroborative evidence, the
testimony of the appellant was that his departure would be detrimental to this
family placing an undue burden on his partner and depriving his son and
imminent son of a father. Counsel for the Minister suggested that his presence
in the family unit could be a negative factor keeping in mind the best
interests of the children, however the panel notes the appellant’s remorse and
intention to rehabilitate himself. While his family has been getting by without
him for some time now, the panel finds that his departure via deportation would
have a negative impact on his family in light of the expected rehabilitation
which he is to undergo.
[22] The panel also finds that the
impact on the appellant of his deportation would be unknown…His return,
therefore, is a neutral factor, even keeping in mind that he has no family
there.
[23] [Family support] … is crucial
for the appellant as the evidence shows that as long as he is with his partner,
he does well. The problems arise, in his own words, when he leaves the care of
his immediate family. While Ms. McRae did not testify at the review hearing,
she did so at the criminal bail review hearing held on January 9, 2009 and
offered evidence in support of his release. This is positive in terms of her
willingness to maintain contact with him and to maintain vigilance over him.
Assuming that this happens, the family support here is a positive factor. The
expectation that he act as a positive role model for his two sons and what the
panel found to be his love for his children are also positive factors.
[24] [With regards to community
support]… [t]he appellant has been supported by his counsel throughout and has
established working contacts with personnel in the rehabilitation field. There
is some evidence, therefore, that he has support in this area.
[25] Counsel for the Minister argued
at the hearing that Mr. Awaleh had breached virtually all of the conditions
attached to his stay order. The panel finds that this is indeed the case. Some
of the conditions are obviously more serious than others. On the one hand, the
conditions relating to not committing any offences or being charged with
offences are serious. The appellant has explained these as being related either
to his drug addiction or his alcohol problem. The panel finds that there is
such a direct correlation. At the same time, the panel finds that he has stayed
away from drugs since June 2008 and intends to stay away from drugs and alcohol
further to enrolling in additional rehabilitation programs.
[26] The remaining stay conditions
are reporting conditions… [and] [b]asically, every one of these conditions has
been breached.
[27] The appellant’s responses to
questions posed to him on these breaches were honest and direct. Yet, his
answers also illustrated clearly to the panel that while he understood the
chronologies of the various events of the past year, he does not entirely
understand all of the details or expectation which they place on him….He also
testified that he felt that if he was in jail, he could not report to CBSA on
address matters or provide other related information. Ordinarily, this would
not be an adequate answer to such breaches. But, in this case, the panel
acknowledges that the appellant, while a well-spoken man, is not sophisticated
in terms of comprehending the significance of the matters affecting his life.
This is compounded by his inability to read English well and his low level of
formal education… If safeguards are in place to help him in the future, and
these would include his continuing involvement with his partner and attending
rehabilitation, then his vulnerability can be overcome or at least managed.
[28] There have been significant
breaches of the stay order conditions which while not excused have been
explained in the difficult circumstances of this case. There are sufficient
humanitarian and compassionate factors, taking into account the best interests
of a child directly affected by the decision, to continue the stay order
presently in effect subject to the terms and conditions therein.
[19]
Those
are the reasons which support the decision whose legality is questioned by the
Minister in light of the principles applicable to a decision of the IAD to
grant or continue a stay of removal.
III. Analysis
[20]
The
IAD is bestowed with a great deal of discretion in conducting appeals of
removal orders. Pursuant to subsections 67(1)(c) and 68(1), the IAD may allow
an appeal or stay a removal order where they are 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.”
[21]
As
noted by the Supreme Court in Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12 at paragraph 57 (Khosa), the IAD is left with the discretion
to determine, not only what constitutes “humanitarian and compassionate
considerations”, but the “sufficiency” of those considerations as well.
[22]
While
the decision under review is not the original grant of the stay, the IAD must
consider the same factors upon reconsideration of the stay, as they consider in
granting it. According to Canada (Minister of
Citizenship and Immigration) v. Stephenson, 2008 FC 82 at
paragraph 25 (Stephenson), “the Ribic
factors continue to be the factors that the IAD is required to consider when
reconsidering a decision pursuant to subsection 68(3) of the Act.”
[23]
Finally, it is important to reiterate that the impugned decision
does not determine the respondent’s appeal of his removal order. The IAD may
review the stay at any time and vary the conditions or reject his appeal (see
section 68 of the Act). The rejection of the appeal would affirm the removal
order and result in the respondent being evicted from Canada.
[24]
In
light of the Supreme Court’s decisions in both Dunsmuir v. New
Brunswick,
2008 SCC 9 at paragraph 62 (Dunsmuir) and Khosa, above, at
paragraph 58 reasonableness is the appropriate standard of review in the
present application.
[25]
Reasonableness requires the “existence of justification, transparency
and intelligibility within the decision-making process. 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” (Dunsmuir, at
paragraph 47). What is particularly important to highlight, is that “there
might be more than one reasonable outcome” (Khosa, at paragraph 59).
Application of the Ribic
factors
[26]
As
in Khosa, it is the IAD’s determination on the sufficiency of
humanitarian and compassionate considerations which is being challenged. There
is no dispute that the IAD considered the Ribic factors, however the
Minister has organized his arguments with reference to these factors,
therefore, for ease of reference, I will do the same.
[27]
The
Minister does not contest the IAD’s assessment of the evidence with respect to
the length of time the respondent has been in Canada and the
degree to which he is established here. Nor does the Minister contest the IAD’s
conclusion that if respondent were to be deported to Somalia, where he
has no family, the impact is “unknown”: “while [Mr. Awaleh] says that his
return to Somalia would amount
to a “death sentence”, it is not clear to the panel why this is so. His return,
therefore, is a neutral factor, even keeping in mind that he has no family
there”.
The possibility of
rehabilitation
[28]
The
Minister submits that the IAD’s conclusion as to the respondent’s
rehabilitation efforts is not reasonable based on the evidence. The Minister
claims that the IAD failed to adequately consider the evidence of the two
failed attempts at rehabilitation and a history of failing to abide by terms
and conditions of release. In support of his position, the Minister focuses on
the fact that shortly after completing the second rehabilitation program in
December 2008, the respondent celebrated by drinking, resulting in more
criminal charges being laid. The Minister further alleges that the respondent
was contradictory with regard to the evidence concerning the amount of alcohol
consumed prior to the December 2008 incident.
[29]
First,
with regard to the contradictory evidence, in its decision, the IAD
specifically notes that there were “several cups of wine” consumed. This
resolves the contradiction pointed out by the Minister, namely, that the respondent
originally claims to have drank a cup or a little wine and later admits to
having numerous cups.
[30]
Next,
at paragraph 17 of the March 13, 2009 decision, the IAD notes the incident
which took place in December 2008 and which led to the most recent criminal
charges being laid. In fact, the IAD comments that “this is a negative factor
in [the] review hearing.” Only after noting this does the IAD Member go on to
state that he accepted the respondent’s evidence at the hearing, which
concerned both the efforts he made in contacting rehabilitation programs and
his intention to continue to pursue the Life House rehabilitation program. The
IAD accepted this testimony “bearing in mind his demeanour … which was candid
and embarrassed at the non-compliance.” The Member also noted that the positive
influence on the respondent by his partner made “rehabilitation … a real
possibility in his life” (at paragraph 19).
[31]
It
was not for the IAD to determine whether the respondent was in fact
rehabilitated, nor whether he would in fact become rehabilitated. The
determination concerns only the IAD’s belief that there was a possibility of
rehabilitation (Kanagaratnam v. Canada (Minister of
Citizenship and Immigration), 2009 FC 295 at paragraphs 10, 13 &
14). In light of this, it must be noted that the Minister has not challenged
the credibility findings of the IAD. Since there is no dispute as to the
credibility of the respondent, it seems reasonable for the IAD to have found
that there was a possibility of rehabilitation. At the very least, it was
opened to the IAD to come to this conclusion, and as stated by the Supreme
Court of Canada in Khosa, above, at paragraph 61, “… it is [not] the
function of the reviewing court to reweigh the evidence”.
The family in Canada and the
dislocation to the family that deportation would cause
[32]
With
regard to the impact on the respondent’s family if he were to be deported, the
Minister submits that the IAD did not adequately consider that the respondent
represents a potential burden on his family and a negative influence on his
children. The Minister further submits that the IAD did not refer to any corroborative
evidence concerning the positive role the respondent plays in his family and
that the IAD unreasonably focused on the respondent’s expected efforts at
rehabilitation to support a finding that his deportation would be detrimental
to the family. Finally, the Minister submits that the children are not being
deported, therefore dislocation would not occur.
[33]
The
IAD, at paragraph 21 of the decision, specifically refers to the Minister’s
argument concerning the potential burden created by the respondent. The Member
also acknowledges that there is no new corroborative evidence from the
respondent’s family. In making his determination, however, the Member accepts
the respondent’s testimony that his departure would be detrimental to his
family by placing an undue burden on his partner and depriving his sons of a
father. The Member admits that fundamental to this conclusion is his belief
that the respondent intends to rehabilitate himself. This logic seems
reasonable in light of the evidence contained in the Tribunal Record, upon
which the original Member of the IAD relied in granting the initial stay, which
established that while the respondent was not using drugs, he worked to support
his family financially and developed strong ties to his children and common-law
wife. Again, since the Minister has not raised any credibility issues, and the
Member determined that there is a possibility of rehabilitation, it seems open
to the Member to have made these conclusions.
[34]
Finally,
while the children themselves are not subject to the removal order, it would
disrupt the family makeup to have their father removed from the country. While
the respondent has recently been absent from his family, a point which was
noted by the Member at paragraph 21 of the decision, it cannot be said that no
dislocation would occur were he to be permanently deported.
Interests of the child
[35]
As
mentioned above, the Minister claims that the IAD did not adequately consider
that the respondent’s presence may not be in the interests of his children. The
Minister submits that the IAD’s conclusion concerning an “expectation that [the
respondent] act as a positive role model for his two sons” is unfounded on the
evidence.
[36]
In
the Tribunal Record there is evidence that Mr. Awaleh played a positive role in
his elder son’s life. According to letters sent by his partner, his partner’s
mother and the Children’s Aid Society, Mr. Awaleh dedicated a lot of time to
caregiving for his child and put a lot of effort into being a good father.
Based on his past actions, it is not unreasonable that the IAD found that the
respondent cared a great deal for his children and that there was an
expectation that he act as a positive role model.
Support available to the
respondent within the community
[37]
The
Minister argues that the Member unreasonably concluded that the respondent’s
legal counsel and rehabilitation contacts constituted community support.
[38]
The
respondent admits that having access to a lawyer is not necessarily equivalent
to having support within the meaning of the Ribic factors. That said,
the respondent submits that he has benefited from having counsel that is able
to help secure access to rehabilitation programs, a service which constitutes
support.
[39]
It
is clear that throughout his legal and immigration battles the consensus has
been that the respondent’s problems are rooted in his addictions. On at least one
occasion, the respondent’s previous counsel made significant efforts to get him
help. As noted by the ID during his first detention review in August 2008, the
respondent’s previous counsel did work to try to have Mr. Awaleh enter the Drug Court system which
would offer the “kind of support system that could give the best chance as
possible for [Mr. Awaleh] to get his life back in order…” Therefore, the
conclusion that the respondent’s legal counsel provides him with support is
hardly unreasonable.
[40]
The
Minister argues that the Member’s reference to the respondent having contacts
in the rehabilitation field is so vague that it suggests nothing more than the
respondent being aware of rehabilitation programs in general.
[41]
While
the choice of words may have been poor, it is noted that the respondent submits
that he had completed two drug rehabilitation programs, in addition to an anger
management program, during the course of which he undoubtedly met counsellors
and other individuals in a position to offer him support. In fact, at the
hearing the respondent referred to a counsellor he met while attending the
rehabilitation program at Sobriety House. Again, the IAD’s conclusion cannot be
said to be unreasonable.
Family Support
[42]
The
Minister argues that the IAD erred in finding that the respondent’s family
support was a positive factor. Specifically, the Minister submits that the IAD
erred in considering the fact that the respondent’s partner was present during
a bail hearing in January 2009 since there was no evidence of the substance of
her input and no evidence before the IAD with regard to her support of the
respondent.
[43]
At
paragraph 23 of the decision, the IAD acknowledges the Minister’s point that
the respondent’s partner did not provide the IAD with any evidence since the
original appeal hearing in February 2008. The IAD Member notes, however, that
there is evidence to support the fact that when the respondent is with his
partner, “he does well.” The Minister does not contradict this finding. The
Member goes on state that “assuming [the respondent’s partner is willing to
maintain contact with him and to maintain vigilance over him] … the family
support here is a positive factor.” In support of his decision to find in
favour of family support the Member notes the presence at the bail hearing as evidence
of a “willingness to maintain contact” with the respondent; the Member does not
hypothesize as to the nature of the statements given at the bail hearing as the
Minister seems to suggest. In light of the evidence, it cannot be said that the
Member’s finding with regard to family support is unreasonable in that it is
unjustifiable or unintelligible.
Breaches of conditions
[44]
The
Minister also submits that the IAD placed no weight on the repeated breaches of
conditions and erred in finding that due to the respondent misunderstanding his
conditions, he was not responsible for breaching them. The Minister further
submits that it was unreasonable for the Member to find, at paragraph 25 that
the respondent had stayed away from drugs and alcohol since June 2008, because
between July and October the respondent was incarcerated.
[45]
At
paragraph 25 of the decision, the Member does note that “virtually all of the
conditions attached to [the] stay order” were breached, but that the respondent
adequately explained these breaches by demonstrating a direct relationship
between his behaviour and his drug and alcohol addictions. At paragraph 27, the
Member then directly refers to the Minister’s argument concerning the
respondent’s lack of understanding by stating that while a lack of
understanding is not usually an adequate explanation for breach of conditions,
in this case, the respondent’s lack of sophistication, low level of education
and inability to read English mitigate the seriousness of the breaches; contrary
to what the Minister suggests, the IAD does not excuse the respondent’s conduct.
[46]
Furthermore,
while it is correct that the respondent was in jail between the months of July
and October 2008, there is no evidence that he sought to use drugs at any point
during or after his rehabilitation, which makes the Member’s statement
perfectly reasonable. Finally, as noted by the respondent, the Member never
claimed that Mr. Awaleh had refrained from consuming alcohol.
[47]
Finally,
the Minister submits that the findings made by the Member with regard to the
respondent are contradictory. The Member found him to be a well-spoken, honest
and direct person, while at the same time finding that the respondent did not
understand the nature of his conditions. The Member also noted that the
respondent “is not sophisticated in terms of comprehending the significance of
matters affecting his life… [which] is compounded by his inability to read
English well and his low level of formal education” (paragraph 27).
[48]
It
seems perfectly reasonable that a person may be honest and direct in their
account of the situation, but display a lack of understanding with regard to
the implication of various events. Furthermore, having read the transcript from
the hearing, I cannot accept the Minister’s argument. There seemed to be a
significant amount of confusion concerning the conditions imposed on the
respondent and whether or not he was ever fully aware of them. Given the
respondent’s low level of formal education and English literacy, this confusion
is not surprising.
[49]
With
respect to all of the Minister’s allegations outlined above, the essence of
their argument is that the IAD failed to accord a sufficient degree of weight
to the respondent’s criminal activities and the breaches of his conditions. As
stated by this Court in Bhalru v. Canada (Minister of Citizenship and
Immigration), 2005 FC 777 at paragraph 1 (Bhalru), “[i]t is for the
Immigration Appeal Division (IAD) of the Immigration and Refugee Board to
determine the weight that it attributes to each and every factor. The Court, in
judicial review, can only determine whether the IAD did, or did not, give
reasonable consideration to the evidence. If reasonable consideration is given,
it is for the Court, in judicial review, to conduct itself with sensible
deference and, thereafter, not to weigh evidence anew.”
Overall conclusion not
unreasonable
[50]
There
is no evidence that the IAD failed to consider all of the relevant factors. In
fact, there is reference to the respondent’s criminality and breach of
conditions at numerous points in the decision. The IAD specifically addresses
many of the issues raised by the Minister and the fact that the IAD did not
agree with the Minister, or does not accord what the Minister argues is the
correct weight to certain factors, is not inherently unreasonable. The
applicant’s argument that the IAD’s findings were contradictory must also be
rejected.
[51]
The
ruling in Bhalru is particularly significant in the current situation
where, as mentioned above, the appeal brought by the respondent against the
removal order has not been conclusively determined. As a result of the March
13, 2009 decision, the respondent is entitled to stay in Canada for another
year, subject to terms and conditions. The IAD maintains a supervisory role
and can cancel the stay or vary the conditions at any time (see subsection
68(2) of the Act and Medovarski v. Canada (Citizenship
and Immigration), 2005 SCC 51 at paragraph 37).
[52]
It
must be reiterated that the weight to be accorded to any of the Ribic factors
varies, depending on the particular circumstances of each case (Dhadwar v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 482 at
paragraph 17). The only provision which requires the stay of removal to be
cancelled is subsection 68(4) which provides:
68 (4) If the Immigration Appeal Division has stayed a removal order
against a permanent resident or a foreign national who was found inadmissible
on grounds of serious criminality or criminality, and they are convicted of
another offence referred to in subsection 36(1), the stay is cancelled by
operation of law and the appeal is terminated.
(Emphasis Added.)
[53]
There
has been no evidence presented that the respondent has been convicted of a
crime that would bring him under this provision. Furthermore, I have been
unable to find any authority in law which requires the IAD to cancel a
stay where the permanent resident is charged with a crime or has
breached his conditions of stay. The reality is quite the opposite. The IAD has
the discretion to consider the totality of the circumstances and determine
whether, despite the existence of factors warranting removal, there are
sufficient humanitarian and compassionate grounds to enable the permanent
resident to stay.
[54]
In
essence, the Minister’s position comes to say that the respondent was granted a
last chance to remain in Canada last May 2008 and by his recent behaviour
just showed that he could not be trusted anymore. However, the presiding member
who heard the matter in January 2009 and rendered the impugned decision felt differently
and, having balanced all the Ribic factors, decided to continue the stay.
It may be that another panel would have weighed these factors differently and therefore
would have accepted the Minister’s position, but this is not the point. While
it may have been open for the IAD to cancel the stay, that is not the test.
Indeed, there may be more than one reasonable outcome. This is such a case.
[55]
Ultimately,
“[w]hether [the Court] agree[s] with a particular IAD decision or not
is beside the point. The decision was entrusted by Parliament to the IAD, not
to the judges”
(Khosa, above, at paragraph 62). The impugned decision is
defensible, transparent and intelligible and I find that it falls within the
range of reasonable outcomes.
[56]
For
the foregoing reasons, the judicial review shall be dismissed.
[57]
Neither
of the parties submitted a question of general importance to be certified and
none is raised in the present case. There were no requests for costs, therefore
none will be awarded.
JUDGMENT
THIS COURT ADJUDGES AND ORDERS
that the
application for judicial review be dismissed. No question is certified.
“Luc
Martineau”
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