Date: 20110224
Docket: IMM-4947-10
Citation: 2011 FC 223
Vancouver,
British Columbia, February 24,
2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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THEMAR KUONY TUEL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
In
Grillas v. Canada (Minister of Manpower and Immigration), [1972] S.C.R.
577, the Supreme Court held that the Immigration Appeal Division’s (IAD) discretion
to stay a deportation order on humanitarian and compassionate (H&C) grounds
is a legislative delegation of the Crown’s prerogative to determine who may
enter and remain in Canada. As such, the IAD’s exercise of its discretion is
entitled to considerable deference. The courts have repeatedly emphasized the
discretionary nature of this relief. In Prata v. Canada (Minister of
Manpower and Immigration), [1976] 1 S.C.R. 376, the Supreme Court stated
that a removal order:
…
establishes that, in the absence of some special privilege existing, [an
individual subject to a lawful removal order] has no right whatever to remain
in Canada. [An individual appealing a lawful
removal order] does not, therefore, attempt to assert a right, but, rather,
attempts to obtain a discretionary privilege.
II. Introduction
[2]
The
Applicant was convicted of assault with a weapon in Canada and ordered
deported on April 24, 2007. On appeal, the IAD stayed the deportation order in
February 2008 for two years on certain terms and conditions including reporting
any subsequent criminal charges or convictions. The Applicant has acknowledged
that she has breached several of the terms and conditions including the fact
that, in July 2008, she was charged with criminal harassment, uttering threats
and assault with a weapon and she failed to advise the IAD or the Canada
Border Services Agency (CBSA). On reconsideration of the stay of the
deportation order, the IAD cancelled the stay and dismissed the Applicant’s
appeal. The Applicant challenges the IAD decision arguing that it failed to
give adequate consideration to the submissions of her counsel and the
Minister’s representative, and that it erred in its factual findings.
[3]
Contrary
to the Applicant’s contention, the Court agrees with the Respondent that the IAD
gave serious consideration to the submissions of counsel and provided entirely clear
and cogent reasons, substantiated in both law and fact, for dismissing the
appeal. With respect to findings of the IAD, it considered all of the facts and
circumstances including any mitigating factors. The Applicant’s breach of the
terms and conditions of the initial stay of the deportation order and her stated
inability at the time (due to her obligations to her children), to comply with
any proposed terms and conditions which includes complying with an outstanding
warrant for her arrest to complete her court-imposed sentence were also part of
the IAD’s consideration in refusing to grant an extension of the stay and
dismiss the appeal.
III. Background
[4]
The
Applicant, Ms. Themar Kuony Tuel, is a citizen of Sudan, born in
1979. She was designated a Convention refugee and she obtained permanent
residence in Canada on August 23, 2000 when she arrived in Canada with her
husband and child as sponsored refugees.
[5]
On
March 12, 2004, Ms. Tuel was convicted in the Provincial Court of Alberta of
assault with a weapon contrary to subsection 267(a) of the Criminal Code, R.S., 1985, c. C-46,
for which she was sentenced to 60 days in jail to be served intermittently on
weekends. Ms. Tuel failed to appear to complete her sentence and a warrant for
arrest was issued by the Alberta Provincial Court Judge in April 2004.
[6]
Ms.
Tuel was reported inadmissible on the ground of serious criminality pursuant to
paragraph 36(1)(a) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) due to her criminal conviction.
[7]
On
April 24 2007, at an admissibility hearing, an Immigration Officer determined
that Ms. Tuel was inadmissible as described and issued a deportation order.
[8]
Ms.
Tuel appealed the deportation order to the IAD. Ms. Tuel did not contest the
legal validity of the deportation order. At the IAD hearing in February 2008,
Ms. Tuel requested the IAD to exercise its discretion and take into
consideration H&C grounds to warrant special relief. By decision dated
February 25, 2008, the IAD granted a two-year stay of the deportation order on
the following terms and conditions including, inter alia:
4. Not commit any criminal
offences;
5. If charged with a criminal
offence, immediately report that fact in writing to the Department;
6. If convicted of a criminal
offence, immediately report that fact in writing to the Department and the
Division;
(Applicant’s Record (AR), IAD Decision,
dated February 25, 2008, at p. 95)
[9]
On
February 4, 2010, the Minister’s counsel advised the IAD that Ms. Tuel was
charged in Canada with three
further offences, harassment, uttering threats and assault with a weapon, which
allegedly occurred on May 20 and 28, 2008. The Minister’s representative
requested that the appeal be brought before the IAD for reconsideration of the
stay of the deportation order (AR, Minister’s submissions, dated February 4,
2010, at p. 23).
[10]
The
IAD gave notice to the parties that it would reconsider the appeal at an oral
hearing on May 25, 2010. Ms. Tuel attended at the hearing represented by
counsel and testified.
[11]
Subsequent
to the hearing, the parties provided written submissions to the IAD. By letter,
dated June 2, 2010, Ms. Tuel, through her counsel, submitted that a continued
stay of the deportation order is appropriate on H&C grounds. By letter
dated June 4, 2010, Minister’s counsel submitted that a stay of the deportation
be continued but on certain additional terms and conditions including the
condition that within four months from the date of the order, Ms. Tuel present
herself to a Peace Officer in the Province of Alberta with a copy of the
Warrant for Arrest and to comply and to complete any existing or future
sentences pronounced by the Court. By letter, dated June 11, 2010, Ms. Tuel’s
counsel stated an inability to agree to the condition that she report to a
Peace Officer in Alberta for the purpose of complying with the Court-ordered
sentence. It was submitted on behalf of Ms. Tuel that this condition was too “onerous”
and “not feasible” because she did not have the financial resources to travel
to Alberta or the
necessary child-care arrangements (AR, at pp. 35-42).
[12]
By
decision dated July 30, 2010, the IAD cancelled the stay of the deportation order
and the appeal was dismissed. The IAD found:
a. Ms. Tuel has
failed to comply with at least three of the terms of her stay: (i) to keep the
peace and be of good behaviour; (ii) to provide the CBSA with a copy of her
passport or her passport application; (iii) she has not dealt with her
outstanding warrant for arrest in Alberta and has no intention of doing so at
the present time. Ms. Tuel has three charges brought against her in 2008
which are serious matters including death threats and assault with a weapon as
well as criminal harassment. These charges of assault correspond in nature and
type with the 2004 charge of assault with a weapon.
b. In
considering the H&C relief, the panel considered the following factors
along with the best interests of any children directly affected:
i.
Seriousness
of the offence – Assault with a weapon – offence for which Ms. Tuel
was convicted is a serious matter. Since then she has been charged again with
the same offence as well as uttering death threats and criminal harassment.
There is no diminishment of her behaviour with respect to the seriousness of
the criminal charges and this situation is increasing rather than decreasing in
seriousness;
ii.
Possibility
of rehabilitation – this is speculative rather than concrete. Ms. Tuel
has been in treatment or in a therapeutic program and had been in receipt of
social worker assistance and yet she continued to drink and engage in violent
behaviour leading to further criminal charges. The panel cannot find any real
possibility of rehabilitation;
iii.
Establishment/Ties
to Canada – has been
in Canada for almost
ten years having been accepted abroad as a Convention refugee. She has no
business or employment ties to Canada but she has ties that bind any refugee to
the place of refuge and protection;
iv.
Effect
on family in Canada – Ms. Tuel has seven children in Canada: two
are with their father in Alberta where she has no plans or intention to visit
them; four are in the care of provincial child welfare authorities and it is
questionable what contact she will be able to have with them in future; the
youngest is with her. Should she be removed from Canada, this will
have some impact on the children, although the nature and extent of that impact
and whether there would be a reverse impact is difficult to judge with precision.
There would be some dislocation to the children if Ms. Tuel were removed
from Canada;
v.
Family
and Community Support – There is a wide range of community support
available to Ms. Tuel; however, she stated at the time that she was unable to
avail herself of these resources in any meaningful way;
vi.
Hardship
caused on removal – Ms. Tuel is a Convention refugee and,
therefore, unless other steps are taken, she cannot be removed to Sudan. No evidence
was led as to what would or might wait for her in that country, were she to
return. Little or no evidence was presented as to what effect it would have on
her, were she to leave Canada.
c. The combined
weight of all of these factors does not support an extension of the stay or
cancellation or allowance of the appeal. The overall situation is considerably
worse than when the stay was first granted. Since the stay was granted in 2008,
Ms. Tuel has failed to comply with the terms and conditions imposed,
failed to change her behaviour which continues to be violent, failed to deal
with the fact that she will be arrested if she returns to Alberta.
d. Ms. Tuel was
not, at the time, prepared to abide by terms and conditions which may be
imposed.
e. Submissions
were made by counsel for Ms. Tuel and the Minister’s representative that the
stay should be extended. The IAD reviewed the written submissions and gave them
“very serious consideration”.
f.
The
purpose of granting the stay on terms and conditions is to give the Applicant
an opportunity to demonstrate that she can and is prepared to change. Stays
will not be granted if the person is going to violate the terms and conditions.
In this case, it is evident that Ms. Tuel has repeatedly specified that she was
unable to comply with the law; she has violated the terms and conditions of her
stay, she has committed further acts which have led to serious criminal charges
and she has remained determined not to deal with the outstanding warrant for
her arrest. In such circumstances, the IAD must consider what purpose would be
served by an extension of the stay.
g. The IAD did
not accept Ms. Tuel’s assertions that now she will do as required. Firstly,
because she said that before and did not keep her word; secondly, her current
assertion is only partially true since she has also stated that, at the present
time, she is unable and, thus, does not intend to deal with the outstanding
warrant for her arrest in Alberta; therefore, there is no significant evidence
that Ms. Tuel will comply with the terms of any stay which is imposed at this
time.
h. There is
little or no evidence regarding the best interests of the children such as
would lead the IAD to extend the stay or allow the appeal. Some of the children
are in Alberta where she claims
to be unable to go. Others are in care in British Columbia and she has
only limited access. The youngest, a baby, is with her but there is
insufficient evidence regarding those circumstances to allow that the best
interests of the child would lead to an extension of the stay.
[13]
Ms.
Tuel now seeks leave to judicially review the IAD decision to cancel the stay
of the deportation order and dismiss her appeal.
IV. Issues
[14]
The
issues are:
(1) Did
an error or breach of procedural fairness occur due to failure to consider
counsel’s submissions?
(2) Were the IAD’s
findings reasonable and based on a consideration of all of the evidence?
V. Analysis
[15]
In
Grillas, above, the Supreme Court held that the IAD discretion to
stay a deportation order on H&C grounds is a legislative delegation of the
Crown’s prerogative to determine who may enter and remain in Canada. As such,
the IAD’s exercise of its discretion is entitled to considerable deference. The
Courts have repeatedly emphasized the discretionary nature of this relief. In Prata,
above, the Supreme Court stated that a removal order:
…
establishes that, in the absence of some special privilege existing, [an
individual subject to a lawful removal order] has no right whatever to remain
in Canada. [An individual appealing a lawful
removal order] does not, therefore, attempt to assert a right, but, rather,
attempts to obtain a discretionary privilege.
[16]
As
noted by the Supreme Court in Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339, the IAD has not only the discretion to determine what constitutes
“humanitarian and compassionate considerations”, but the “sufficiency” of those
considerations as well.
[17]
The
IAD must consider the same factors in Ribic v. Canada (Minister of Employment and
Immigration),
[1985] IABD No. 4 (QL/Lexis), upon reconsideration of the stay as they
considered in the original granting of the stay pursuant to subsection 68(3) of
the IRPA (Abdallah v. Canada (Minister of
Citizenship and Immigration), 2010 FC 6, 87 Imm. L.R. (3d) 251, at
paras. 27-28; Canada (Minister of Citizenship and Immigration)
v. Awaleh,
2009 FC 1154, [2009] F.C.J. No. 1439 (QL/Lexis), at paras. 21-22; Canada (Minister of
Citizenship and Immigration) v. Stephenson, 2008 FC 82, [2008] 4 F.C.R.
351, at para. 25).
A. Standard
of Review
[18]
In
Khosa, above, the Supreme Court held that the appropriate standard of
review for the discretionary decision made by the IAD is that of
reasonableness. Significant judicial deference is owed to IAD decisions and, in
particular, its decisions based on the evaluation and weighing of evidence
before it. Reviewing courts ought not to reweigh the evidence or substitute
their own appreciation of the appropriate solution, but must rather determine
if the outcome falls within a range of reasonable outcomes. The question as to
whether an applicant had established sufficient H&C considerations to
warrant relief from his/her removal order is a decision which Parliament
confided to the IAD, not to the courts (Khosa, above, at paras. 58-60).
B. The IAD
Considered Joint Submissions
[19]
Ms
Tuel argues that the IAD breached the principles of natural justice or
procedural fairness by “not sufficiently considering joint recommendation”. In
particular, Ms. Tuel argues that the IAD failed to address each of the points
in her counsel’s written submissions including the proposed terms and
conditions of the stay.
[20]
There
was no error or breach of natural justice. The IAD specifically noted and
mentioned the joint recommendations of counsel referenced during the
mid-hearing conference and post-hearing written submission and stated that
“very serious considerations” were given to these recommendations. The IAD
referred to submissions from Ms. Tuel with respect to her circumstances as a
Convention refugee who has experienced the trauma of war, forced marriage,
violent relationships, language, literacy and cultural barriers in Canada;
however, after reviewing all of the Ribic factors and the best interests
of the children affected by the decision, the IAD set out in clear and cogent
terms the reasons why the appeal is dismissed (IAD Decision, at paras. 18-20).
[21]
There
is no requirement in the context of procedural fairness or natural justice
which requires the IAD panel to cite every aspect of submissions of the
parties. From the reasons of the IAD, the basis of its dismissal of the appeal is
clear notwithstanding the joint submissions of the parties.
[22]
The
concern, with respect to the proposed terms and conditions, was addressed by
the IAD as one of the key components as to why the appeal was dismissed and the
extension of the stay was not granted. The IAD noted Ms. Tuel’s admission that
she had not abided by the previous terms.
[23]
There
is no merit to Ms. Tuel’s contention that there was a breach of the duty of
fairness in not giving adequate consideration to the joint recommendations.
The IAD did not ignore the submissions as is apparent in the reasons.
C. The IAD
Considered all Relevant Facts and Circumstances
[24]
Ms.
Tuel argues that the IAD erred in its consideration of all of the relevant
facts and circumstances. Ms. Tuel also argues that the IAD failed to consider
the many positive factors and mitigating circumstances in her case.
[25]
The
IAD considered all of the relevant factors in Ribic above including Ms.
Tuel’s explanations and rationalizations of her past actions. For all of the
reasons provided, the IAD determined that in the weighing of all of the factors
including that of the best interests of the children, it was not enough to weigh
in favour of granting the appeal or extending the stay.
[26]
As
stated by the IAD, no one is exempt from the law and no one may pick and choose
which laws to obey and when, nor can one decide for oneself to which conditions
to submit and which to ignore. Ms. Tuel continues to refuse to acknowledge that
all of the laws in Canada apply to her. The IAD’s refusal to extend the
stay on terms and conditions and dismissal of the appeal were reasonable based
on all of the circumstances of the case and especially in light of
Ms. Tuel’s stated inability to comply with the terms and conditions of her
stay, the laws of Canada and a Court-ordered sentence.
VI. Conclusion
[27]
For
all of the reasons noted above, the Applicant’s application for judicial review
is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the Applicant’s application for judicial review be
dismissed. No question of general importance for certification.
“Michel M.J. Shore”
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