Docket: IMM-567-11
Citation: 2011 FC 1264
Ottawa, Ontario, November 7, 2011
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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STERIE CRACIUN
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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
[1]
This
is an application for judicial review of a decision of the Immigration Appeal
Division (IAD) of the Immigration and Refugee Protection Board, dated December
23, 2010 (the impugned decision), which reconsidered its previous direction
staying the execution of the applicant’s removal order and dismissed his appeal
pursuant to subsection 68(3) of the Immigration and Refugee
Protection Act
SC 2001, c 27 (IRPA) on the basis that he has violated the conditions of his
stay.
BACKGROUND
[2]
The
applicant is a 41 year old citizen of Romania. He landed in Canada in June 1995
and became a permanent resident on April 17, 1997.
[3]
The
applicant was convicted of a fraud-related crime on January 28, 2002. He was
subsequently found inadmissible for serious criminality in that he was a
permanent resident of Canada who had been convicted of an offence punishable by
a maximum term of imprisonment of at least ten years pursuant to paragraph
36(1)a) of the IRPA, and a removal order was consequently issued against
him on May 15, 2003.
[4]
The
applicant appealed
this removal order pursuant to subsection 63(3) of the IRPA. On March 9,
2004, the IAD granted the applicant a stay of removal for a period of five
years subject to terms and conditions on the basis of humanitarian and
compassionate considerations and the best interests of a child directly
affected by the removal order. The stay was reconsidered and maintained on
January 23, 2006. The conditions of stay were extended in February 2010.
[5]
The
applicant was arrested in May 2009 for possession of stolen credit cards in Toronto. Although
the charges laid against him had subsequently been withdrawn, on December 23,
2010, the IAD reconsidered the existing stay order and dismissed the applicant’s
appeal in view
of his breach of the terms and conditions of the stay, namely condition #11,
not to associate, knowingly, with individuals who have a criminal record or who
are engaged in criminal activity, and condition #5, to report any criminal charges
to the immigration authorities.
[6]
Supervising
Sergeant Pierre Filion of the Sûreté du Québec (SQ), Criminal Intelligence
Projects Service (SPRC), Organized Crime Involving Individuals of Eastern
European Descent (COSEE), testified at the hearing. Sergeant Filion was
involved in a SQ project to establish a portrait of the Eastern European
criminality in Canada with the aim of validating and corroborating
the information obtained by the RCPM with regard to certain individuals,
including the applicant.
[7]
Sergeant
Filion testified before the IAD that he conducted surveillance on the applicant
from November 25, 2005 to February 2007. He testified that the SQ put an end to
the surveillance in February 2007 as the information collected was sufficient
to establish the criminality of the applicant, namely that he was a cell leader
in bank and card cloning. According to Sergeant Filion, the applicant’s file
should have “fell between the cracks” since no charges were ever laid against
him subsequent to the investigations.
[8]
Of
importance, Sergeant Filion testified on the basis of a report that he authored
on the occasion of the investigations, that the applicant had been observed
while meeting with a number of individuals with longstanding criminal records.
The IAD noted the circumstances of the alleged meetings and dates on which they
have occurred, and decided, after questioning the applicant with regard to the
allegations against him, that “significant weight” was to be given “to the
criminal profile compiled by Sergeant Filion, especially in light of the fact
that such report is uncontradicted by any evidence save for the denials of the
appellant who was a less that credible witness” (impugned decision, paragraph
21).
[9]
The
IAD noted that the applicant’s testimony at the hearing was vague and that he
was unable to recall certain incidents. The IAD also noted that the applicant
had neglected to provide the required evidence of employment and had only filed
evidence of income.
[10]
The
applicant’s wife, Mrs. Elena Cristina Abrudan, also testified at the hearing
contending that her husband’s criminal profile is not true since he has never
been arrested on the basis of that profile. The IAD mentioned that the
applicant’s wife is the sole proprietor of the hairdressing salon where she
works although not being a permanent resident of Canada, she is not
legally allowed to work since March 13, 2006, on which date her employment
authorization expired. The IAD then somewhat hastily noted that Mrs. Abrudan
has a disregard for the law because she is working without having the required
employment authorization.
[11]
In
view of these considerations, and noting the longstanding involvement of the
applicant in fraud-related crime and his association with individuals with
criminal records even after he was granted a stay subject to conditions
requiring him to refrain from criminal activity, the IAD stated its preference
for Sergeant Filion’s testimony, rather than that of the applicant and his wife
whose testimony were considered as lacking in sincerity and not credible.
ISSUES
[12]
The
applicant is challenging the IAD’s decision to deny his request to maintain the
stay, arguing that in denying his request the IAD erred in law
and in fact. He raises the following issues with regard to the impugned decision:
1. Did the IAD
err in law by misinterpreting its powers on the reconsideration?
2. Is the
decision unreasonable?
3. Did the IAD
err by failing to consider the best interests of the applicant’s children?
4. Was the
determination that the applicant’s wife is not credible, reasonable?
ANALYSIS
[13]
The
principles governing appeals
from removal orders before the IAD are noted by this Court in Canada
(Minister of Citizenship and Immigration) v Awaleh, 2009 FC 1154 at paras
20-22:
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.”
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.
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.”
[14]
I
have come to the conclusion that the arguments of attack raised against the
impugned decision by the applicant are without merit. In so doing, I have
considered the oral and written submissions made on behalf of the parties and
the case law cited by counsel. This includes the respondent’s supplementary
memorandum which has been served and filed pursuant to paragraph 9 of the Order
granting leave rendered on August 4, 2011. I have dismissed the objection made
by the applicant’s counsel that the respondent’s supplementary memorandum of
argument cannot be considered by the Court on the grounds that there has been
no further affidavits on cross-examinations, or that the applicant has not
served and filed himself a supplementary memorandum.
The IAD did
not err in its interpretation of its powers on the reconsideration
[15]
The
applicant contends the IAD erred by referring to this reconsideration as
“final”, arguing that the IRPA does not limit the availability of
reconsiderations or address any sort of final reconsideration of a stay. The
applicant contends that by referring to this reconsideration as “final” the IAD
concluded that the only possible outcomes were either to allow or to dismiss
the appeal, and that continuing the stay was not considered as a possible
outcome, contrary to section 66 of the IRPA. The applicant submitted that the
IAD therefore erred in law.
[16]
The
respondent argues that the IAD did not fetter its discretion since the
September 13, 2010 notice to appear, sent out before the hearing, set out the
possibility that the stay could be continued and that the applicant cannot
complain that the stay was cancelled as he clearly failed to comply with the
conditions.
[17]
In
the Court’s view, the applicant’s argument cannot stand. The use of the word
“final”, which I interpret as meaning that the IAD is referring to the latest
reconsideration, as there have been a few, does not indicate in any ways that
the IAD was not open to continue the stay or that it otherwise fettered its
discretion as submitted by the applicant.
The decision
is reasonable
[18]
It
was not unreasonable for the tribunal to conclude that the applicant breached
certain conditions of his stay (conditions #5 and #11). The applicant submits
that the IAD erred in noting that he was charged with assault with a weapon in
2002, which is not true and constitutes a reviewable error. In the Court’s
view, this factual error is not material and does not warrant intervention.
What the applicant was charged with is irrelevant in so far that it is proven
that he failed to properly report the charges.
[19]
The
applicant contends that he reported the 2009 charges to the immigration
authorities and that the IAD failed to consider this evidence. He argues that
the decision was therefore based exclusively on his association with
individuals with criminal records and claims that he ignored the fact that
those individuals had criminal records. On the other hand, the applicant
submits that the respondent Minister failed to meet the burden of proving that
he knew he was associating with criminals and that the IAD’s finding, on a
balance of probabilities, that he associated with criminals is insufficient to
conclude that he knowingly associated with them.
[20]
The
respondent notes that one of the conditions of the applicant’s stay was that he
reports any charges to the immigration authorities in writing, which he failed
to do, and that there was no evidence that he ever did report the charges. I
note that the evidence filed by the respondent (affidavit of Dominique Toilon,
statutory declaration of Natalie Bélange of Canada Border Services Agency)
points out that upon review of the applicant’s paper file and the
computer-based data regarding the applicant, no evidence exists that the he
alerted them in writing or by any other means of communication of any charges
against him. This evidence has not been contradicted by the applicant.
[21]
The
respondent also notes there is ample evidence of the applicant’s association
with criminals and it was therefore reasonable for the IAD to discount the
applicant’s assertion that he was unaware that the individuals with whom he was
associating had criminal records. The respondent argues that the onus was on
the applicant to prove he complied with the conditions and therefore the IAD’s
conclusion that he breached two of them was reasonable.
[22]
In
view of the Court, the IAD’s conclusions about knowingly associating with
criminals are reasonable. It should be reminded that 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 c Nouveau-Brunswick, 2008 SCC 9 at para
47). The IAD's assessment
of the evidence, too, is owed the same degree of deference and the Court should
intervene only if the IAD's
findings and inferences are unreasonable.
[23]
The
applicant asserts that the words “not knowingly” in condition #11 connote a
requirement of specific knowledge that an individual has a criminal record or
will engage in criminal activity and therefore the burden of proof to establish
specific knowledge is more onerous that general knowledge and cannot be proved
on a balance of probabilities, as the IAD did. It is submitted that the IAD’s
use of the balance of probabilities test against the individuals with criminal records
or who were engaged in criminal activity might satisfy a general condition not
to associate with individuals with criminal records or engaged in criminal
activity, but it does not satisfy a specific condition requiring that the
applicant “not knowingly” associated with individuals with criminal records or
engaged in criminal activity. The applicant contends that the IAD committed an
error in law by applying the wrong burden of proof.
[24]
Alternatively,
the applicant submits that since there was no finding by the IAD of actual
knowledge on the part of the applicant, its finding of the applicant’s
awareness (or specific knowledge) is unreasonable since the test of balance of
probabilities was applied to evidence of suspicion which cannot be the basis of
constructive knowledge.
[25]
In
my opinion, the applicant confuses two distinct concepts: that of the
evidential burden and that of the legal burden of proof. The burden
of proof (or the evidential burden) refers to the scope of the
evidence required in terms of facts, matters or criteria in respect of which
proof must be advanced. The legal or the persuasive burden, in contrast, refers
to the onus that a party bears to prove each point on either the balance of
probabilities in a civil case, or to beyond a reasonable doubt in a criminal
case. There is no third legal burden of proof as the applicant suggests. See Sopinka
Lederman & Bryant: The Law of Evidence in Canada, 3rd ed
(Markham, Ontario:
LexisNexis, 2009) at page 90, paragraph 3.11.
[26]
The
IAD thus applied the correct legal burden of proof, namely that of the
balance of probabilities, and did not have to differentiate between specific or
general knowledge of the applicant of the individuals that he frequented when
weighing the balance of probabilities. The IAD did not err in its assessment of
the evidentiary or probative value of the evidence as the applicant suggests.
The conclusion that the applicant breached condition #11 of his stay does not
require any positive evidence to the effect that he did in fact have knowledge
of the criminal record or activities of the individuals that he frequented. He
could, however, bring before the IAD the evidence that he did not have that
knowledge, which he seems to have failed to do. More precisely, the IAD’s reliance on
Sergeant Filion’s report and testimony is not unreasonable given the fact that,
as the IAD noted, the applicant did not provide anything to rebut this
determinative evidence.
The IAD did
not fail to consider the best interests of the applicant’s children
[27]
The
applicant simply asserts that his children will be prejudiced by his removal
and claims that the IAD failed to consider this issue at all. The respondent
argues that the IAD considered this prejudice but found that it was outweighed
by his breach of the conditions of the stay. The respondent also notes that the
applicant bore the burden of giving evidence of his children’s interests and
that he failed to provide any further evidence with this respect to warrant
greater consideration.
[28]
In Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para
57, the Supreme Court confirmed that the assessment by the IAD of humanitarian and compassionate
considerations cited in support of an appeal of a removal order is reviewable
on a standard of reasonableness.
[29]
The
impugned decision of the IAD did consider the children’s interests, albeit
briefly. However, it is true that there was no evidence to require a more
fulsome consideration of the children’s interests. Moreover, since children’s
best interest is not a determinative factor that would suffice to outweigh any
other consideration (Dela Rea Manalang v Canada, 2007 FC
1368 at para 110), the Court considers the impugned decision to be reasonable.
The
credibility determination about the applicant’s wife was not material
[30]
The
applicant lastly argues that the IAD erred by not considering his wife’s
pending humanitarian
and compassionate application from 2001(which has been approved in principal
in 2003 but no confirmation has been forthcoming since then), since the
credibility determination was based on her working without the required
employment authorization. The respondent reiterates the applicant’s wife’s
disregard for the immigration system demonstrated by her working illegally and
submits that the applicant is merely expressing his disagreement with the
weight the IAD gave to different factors in its assessment of the evidence.
[31]
At
the hearing before this Court, counsel took issue with the statement made by
the IAD that “[a]s regards the appellant’s wife, her own lack of respect for
Canadian law elicits little sympathy from the tribunal”. However, according to
counsel, this was not material in the credibility assessment the IAD had to
make.
[32]
That
said, I notice the IAD specifically dealt with Mrs. Abrudan’s credibility but concluded
that it “prefers Sgt Filion’s testimony to that of the appellant and his wife
who were less than credible witnesses in that their testimony was lacking in
sincerity and was not convincing”.
[33]
Although
the IAD’s comment with regard to Mrs. Abrudan’s disregard for the law may be nonsensical
or difficult to understand, it has to be replaced in his context – the IAD was
examining the prejudice that the non-continuance or cancellation of the stay
would have on the applicant’s family, including his wife and children.
Moreover, it is clear in the reasons of the impugned decision, and reasonable, that
the assessment of this issue was not material to the outcome of the decision.
It must be reminded in this respect that the Ribic factors are
considered to be “illustrative, and not exhaustive” and that “the weight to be
accorded to any particular factor will vary according to the particular
circumstances of a case” (Chieu v Canada (Minister of Citizenship and
Immigration), 2002 SCC 4 at para
40).
[34]
In
view of the above reasons, this application for judicial review must
fail. At the hearing, the applicant has left the Court discretion to decide
whether the reference by the tribunal to the reconsideration as “final” raises
a question of general importance. In my opinion, the law is clear and the
answer already given by the Court to the argument made by the applicant does
not generate a question of general importance. Accordingly, no question shall
be certified in the circumstances.
JUDGMENT
THIS COURT’S
JUDGMENT is that the
present application for judicial review be dismissed. No
question shall be certified in the circumstances.
“Luc
Martineau”
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