Date: 20070430
Docket: IMM-3082-06
Citation: 2007 FC 458
Toronto, Ontario, April
30, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SERGUEI
GOREV OLSON
Applicant
and
THE MINISTER OF EMERGENCY
PREPAREDNESS AND PUBLIC SAFETY
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of the Immigration and Refugee Board (Immigration Appeal Division)
(the IAD), dated May 16, 2006, which dismissed the applicant’s appeal of a
removal order.
[2]
The
applicant seeks an order quashing the decision to dismiss his appeal and
referring the matter for redetermination by a differently constituted panel of
the IAD.
Background
[3]
The
applicant, Serguei Gorev Olson, is a twenty-four year old citizen of Russia. He
experienced a turbulent childhood, during which he was sent to an orphanage,
where he remained until 1999. The applicant claimed that he was sexually
assaulted as a child over a four year period. His sister was adopted by a
Canadian family in 1998. This family also eventually adopted the applicant’s
brother. The applicant arrived in Canada in 1999 on a student
visa. He was sponsored by another Canadian family, and was adopted by them in
2002.
[4]
The
applicant sexually assaulted his ten year old adoptive cousin on two occasions,
in August 2002 and January 2003. When his adoptive parents found out, they were
furious and immediately sent him back to Russia. He went to
live with his birth mother and brother for two months, but left due to their problems
with alcoholism. He rented an apartment and was given some financial support by
his adoptive parents. He claimed that he was unable to find work as he did not
have the necessary job skills.
[5]
The
applicant was eventually forgiven by his adoptive parents and arrangements were
made to bring him back to Canada. He obtained a permanent resident visa and
re-entered Canada in 2004.
However, he was detained at the airport due to outstanding sexual assault
charges. The applicant pled guilty to sexual assault, and was convicted on
September 30, 2004. He received a six month conditional sentence and one year
of probation. The applicant obeyed the conditions of his sentence, sought
counselling, and completed treatment programs.
[6]
The
applicant’s sentence rendered him inadmissible to Canada on serious
criminality grounds, pursuant to paragraph 36(1)(a) of IRPA. Therefore, a
deportation order was issued against him on January 6, 2005. The applicant
appealed the deportation order on humanitarian and compassionate (H&C)
grounds in January 2005. The IAD hearing was held on January 27, 2006. The
applicant was the only witness questioned during the hearing. The IAD asked
counsel for submissions regarding the issuance of a stay of deportation with
conditions. The IAD dismissed the applicant’s appeal by decision dated May 16,
2006. This is the judicial review of the IAD decision to dismiss the
applicant’s appeal of the deportation order.
IAD Reasons
[7]
The
main issue in the case was whether, taking into account the best interest of
the child directly affected by the decision, there existed sufficient H&C
considerations to warrant special relief. The IAD considered the applicant’s
testimony, the documentary evidence, materials tendered at the hearing, and
counsel’s submissions. The IAD noted that the applicant’s conditional sentence
prohibited him from contacting the victim, being alone with children without
adult supervision, or attending parks, or any location where children
congregated, without accompaniment by an adult approved in writing.
[8]
The
IAD took into account the following factors approved in Chieu v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3,
with respect to the exercise of its discretionary jurisdiction: (1) seriousness
of the offence; (2) possibility of rehabilitation; (3) likelihood of the
applicant re-offending; (4) length of time spent in Canada; (5) degree of
establishment in Canada; (6) family and community support available; (7)
dislocation to family in Canada caused by deportation; and (8) degree of
hardship experienced if deported. The IAD also noted its duty to protect the
health and safety of Canadians.
[9]
The
applicant did not have prior criminal convictions in Canada. In
considering the seriousness of the crime, the IAD noted his adoptive mother’s
statement that sexual assault was a broad term and that his actions did not
constitute rape. However, the victim’s parents thought the crime was serious
enough to contact police. There were discrepancies between the applicant’s
account of the assault, which minimized the seriousness of the crime, and that
of the victim. The police report, which recorded the victim’s more serious
allegations, was found to be credible.
[10]
The
applicant was in denial about the seriousness of his crime, as he did not consider
himself a paedophile. The IAD considered three psychological reports regarding
the probable effects of the applicant’s alleged sexual abuse in Russia. The
applicant seemed more concerned about his own well-being than that of his
victim. Dr. Reimer indicated that the applicant bore a low moderate risk of
recidivism. Dr. Williams came to a similar conclusion, but noted that the
applicant’s refusal to consider himself a sex offender was significant, as he
was in denial about his sexual interest in males.
[11]
The
applicant had been in Canada for five and a half years. His only
establishment in Canada was as a member of his adoptive family. His
adoptive family consisted of two parents and three adult siblings. One of his adoptive
sisters had two children. There were affidavits of support on file from his
adoptive mother, siblings, brother-in-law, grandmother, three other Olson
family relatives, and one friend. The affidavits indicated that they would
suffer personal loss if the applicant were deported. Significantly, there were
no affidavits of support from his adoptive father and grandfather. It was not
probable that his adoptive sister’s young children would experience long term
negative consequences from his deportation.
[12]
The
applicant had two natural siblings (Kira and Dimitry) in Canada. Kira was
very close to the applicant, and the IAD found that she would likely be
negatively affected by his deportation. However, her situation was not
compelling enough to warrant allowing the appeal or staying the deportation
order. Significantly, there was no affidavit from Dimitry. The applicant had
family in Russia, including
his mother, four half-siblings, and four full siblings. The IAD noted the
description of his experience when he returned to Russia in 2004. The
applicant met his girlfriend and they had maintained a long-distance
relationship. He told Dr. Gingell that he desired to stay in Canada, but felt
comfortable in Russia. The IAD found that he would probably obtain
short-term financial support from his adoptive family should he return to Russia; therefore,
his hardship would not be great.
[13]
The
IAD was uncertain as to the efficacy of staying the applicant’s deportation.
Any stay of deportation with employment or education conditions might be
ineffectual, since the relevant permits were the Minister’s prerogative. The
IAD requested written submissions on how a stay might be rendered effective
with regard to the work and study permissions now denied the applicant. Canadian
society required protection from perpetrators of sexual abuse against
children. The IAD found, on the balance of probabilities, that taking into
account the best interests of the child affected by the decision, there were insufficient
H&C considerations to warrant a grant of special relief in the case. The
appeal was dismissed.
Issues
[14]
The
applicant submitted the following issues for consideration at the hearing:
1. Did the IAD breach
the rules of natural justice by failing to allow the applicant the right to
make fullsome submissions with respect to allowing the appeal?
2. Did the IAD exercise
its discretion properly?
These issues were addressed by the respondent
at the hearing..
Applicant’s Submissions
[15]
The
applicant submitted that the IAD breached the principles of natural justice. After
evidence was introduced at the hearing, the IAD stated that it would not allow
the appeal, but asked counsel to discuss the possibility of a stay. It was
submitted that upon the direction of the IAD, counsel for the applicant only
made submissions with respect to the stay, and did not address the merits of
the appeal.
[16]
The
applicant submitted that counsel was entitled to make submissions as to why the
appeal should not be dismissed, and was prohibited from doing so. It was
submitted that having stipulated that a stay would be granted, it was not open
to the IAD to dismiss the appeal without giving counsel an opportunity to address
the substantive issues. It was submitted that the case of Velauthar v. Canada (Minister of
Employment and Immigration) (1992), 141 N.R. 239, 33 A.C.W.S. (3d) 1115
(F.C.A.) was similar to the case at hand. In Velauthar, the Federal
Court of Appeal stated the following at paragraph 4:
There has been a gross denial of natural
justice here. The panel had stipulated that the appellants feared persecution
and that the only issue was whether that persecution was encompassed in the
Convention refugee definition. It proceeded, on grounds of credibility, to
negate its stipulation. The appellants were denied the opportunity to know and
answer the case against them by a deliberate decision of the presiding member
in which his colleague acquiesced.
[17]
The
applicant submitted that the IAD’s review of the evidence was selective. It was
submitted that much of the evidence indicated that his risk of re-offending was
very low. The applicant submitted that it was incumbent upon the IAD to explain
why it preferred certain evidence. The applicant submitted that the IAD erred
by ignoring relevant evidence (see Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d)
264 (F.C.T.D.)). The applicant also noted that the IAD did not mention evidence
from his relatives that was relevant to the issue of rehabilitation and
equitable relief.
[18]
The
applicant submitted that the IAD made patently unreasonable inferences,
including its finding that he showed no remorse about his crime. It was
submitted that a review of the transcript refuted this finding. The IAD also
preferred the evidence from the police report rather than the applicant,
regarding the nature of the assaults. The applicant noted that these reports
were adduced into evidence at the last minute, and that he was not questioned
about any discrepancies.
Respondent’s Submissions
[19]
The
respondent noted that the applicant had not challenged the validity of the
deportation order against him, but appealed the order on the ground that there
were H&C factors warranting special relief. It was submitted that as a
person seeking a discretionary privilege, the onus was on the applicant to
establish exceptional reasons why he should be allowed to remain in Canada (see Chieu
above).
[20]
In
Mendiratta v. Canada (Minister of Citizenship and Immigration (2005),
137 A.C.W.S. (3d) 1001, 2005 FC 293, the Federal Court held that it would not
interfere with the IAD’s exercise of discretion, so long as that discretion was
exercised in a bona fide manner, and without regard to extraneous or
irrelevant considerations. The respondent submitted that the IAD considered the
relevant factors.
[21]
The
respondent submitted that the IAD provided applicant’s counsel with a
reasonable opportunity to make submissions as to why his appeal should be
allowed. It was submitted that counsel acknowledged that she had made such
submissions and did not wish to make further submissions. While the IAD invited
counsel to discuss the possibility of a stay and whether the IAD could
authorize the applicant to work and study in Canada, no decision
was made during the hearing as to whether a stay would be granted. It was
submitted that at the conclusion of the hearing, counsel should have been aware
that the appeal might be dismissed.
[22]
The
respondent noted that applicant’s counsel was given several weeks following the
hearing to make written submissions. Counsel’s submissions argued that there
were sufficient H&C factors to warrant allowing the appeal, or in the
alternative, that the removal should be stayed. It was noted that counsel did
not request an opportunity to make further oral submissions. In counsel’s
further written submissions, she acknowledged that she had been provided with
an opportunity to make submissions regarding the merits of the appeal, and had
availed herself of this opportunity.
[23]
The
respondent submitted that contrary to the applicant’s suggestions, the IAD
carefully considered all of the evidence before it. The IAD referred to Dr.
Williams’ risk assessment and the affidavits of the applicant’s family members.
It was submitted that the applicant was asking the Court to reweigh the
evidence, which was not appropriate in the context of an application for
judicial review.
[24]
The
respondent submitted that having had the opportunity to observe and listen to
the applicant, the IAD was of the opinion that he was not sincerely concerned
about his victim. It was submitted that a Court should not interfere with a
finding of fact made by the IAD, unless the finding was unreasonable or even
patently unreasonable (see Mugesera v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40). It was submitted that the
IAD’s finding that the applicant was not sincerely concerned about his victim
was reasonable. The applicant did not dispute that he failed to express concern
for his victim until prompted by the IAD. The respondent submitted that it was
well-settled law that the Court should be reluctant to interfere with findings
by the IAD that are based upon the tribunal’s own observations of a witness. It
was submitted that lack of remorse was only one of many factors considered by
the IAD in dismissing his appeal.
Applicant’s Reply
[25]
The
applicant noted the respondent’s argument that there was no breach of natural
justice, since applicant’s counsel briefly addressed the H&C considerations
in her general submissions. The applicant submitted that the respondent failed
to appreciate that the hearing was adjourned for written submissions upon the
direction of the IAD over a point of law. This occurred at the end of the
hearing when applicant’s counsel was to make oral submissions on all of the
equitable circumstances surrounding the case.
[26]
The
applicant submitted that counsel’s submissions were based on a direction by the
IAD to discuss jurisdiction. It was submitted that to suggest that there was no
breach of the principles of natural justice when the IAD, without notice,
dismissed the appeal, was absurd. The applicant submitted that the fact that
counsel briefly touched on equitable considerations did not negate the fact
that she was under the false impression that some form of stay was going to be
granted.
Analysis and Decision
Standard of Review
[27]
The
standard of review to be applied in order to determine whether a breach of
procedural fairness has occurred is correctness.
[28]
Issue
1
Did the IAD breach the rules
of natural justice by failing to allow the applicant the right to make fullsome
submissions with respect to allowing the appeal?
The applicant submitted that the IAD
breached procedural fairness by denying his counsel the opportunity to make
full submissions at the hearing with respect to the merits of his appeal. The
respondent submitted that counsel was given the opportunity to make such
submissions and did so. I have reviewed the hearing transcript and it reveals
that the IAD expressed its initial opinion of the merits of the appeal as
follows:
…Well, I will tell you at the outset that
the panel would be disinclined to consider anything other than a stay, based on
the evidence already before it. However, it may be that the panel will be
convinced that the appeal should be allowed. Let us hear from your witness.
…
I take it that, given the appellant’s
position, that counsel have not discussed what a stay, should that be the case,
might involve and have not discussed the possibility of a joint recommendation
in that regard.
[29]
After
the applicant was questioned, the IAD asked the parties about their positions
on the issue of a stay:
Well, I’m not going to allow the appeal,
so you can consider whether or not you can arrive at a joint position in
relation to a stay, if you would like to do that. Now that’s not compulsory,
Counsel.
[30]
The
proceedings recessed and counsel for the parties proceeded to discuss the
possibility of a stay. Upon the resumption of proceedings, counsel were unable
to reach an agreement regarding the length of the proposed stay. A related
issue arose regarding whether the IAD could impose terms upon the potential
stay, thereby allowing the applicant to work or study, in light of the
restrictions he was under. The IAD stated:
Well, I would never impose a six-month
stay in any event and I think a two-year stay would be an entirely reasonable
one, so I have no problem with the Minister’s position, seeing it is my
decision.
Now, I will recess for five minutes and
just discover – because I’ve not encountered exactly the same thing before in
terms of how my stay and conditions weigh against the restrictions that
presently exist and if my terms and conditions supersede, then I don’t have a
problem with work and study. […]
[31]
Once
the proceedings resumed, the IAD was of the opinion that it did not have the
power to impose conditions that would supersede those already in existence.
However, the IAD asked counsel for submissions on the issue and the decision
was reserved.
[32]
I
have reviewed the transcript of the hearing, and it is clear that applicant’s
counsel did not make submissions regarding the H&C factors in support of
the appeal. It is easy to understand why applicant’s counsel was under the
impression that the IAD had decided to grant a stay, and merely needed
submissions regarding the power to impose conditions with respect to the stay. At
the end of the hearing, the IAD stated:
All right. I will adjourn this pending
the receipt of a submission from appellant’s counsel on the authority of the
panel in this particular instance, that is, the panel’s ability to override
restrictions placed upon the appellant as someone without status, as he stands.
I’m not going to render myself functus, but it’s not my intention to
send you back to Russia’s winter if I can avoid that.
So bide your time, say your prayers, put trust in your counsel and this hearing
is thus adjourned pending receipt of submissions from appellant’s counsel.
[33]
Applicant’s
counsel provided the IAD with the requested submissions on the stay issue,
dated February 10, 2006. These submissions included the following reference to
the possibility that the appeal might be allowed on H&C grounds:
In the alternative, if you determine that
you do not have the authority to impose conditions superseding the officer, it
is submitted that this is a further humanitarian and compassionate factor
warranting that the appeal will be allowed outright and as the inadmissibility
is overcome based on humanitarian and compassionate factors, that Mr. Olson be
granted permanent resident status. It is submitted that a stay of proceedings
for a period of two years without the opportunity for the Appellant to be able
to work or study would be overly punitive and further would impede his ability
to re-cover and re-integrate into society. In these circumstances, it is
submitted that the harsh effect upon the Appellant would constitute a further
humanitarian and compassionate ground and that the Appeal be allowed and
permanent resident status granted to the applicant.
[34]
In
my view, it is clear that counsel’s submissions addressed the H&C factors
in the context of the stay issue. Counsel’s further submissions, dated March 1,
2006 state:
The only outstanding matters are whether
or not the appeal ought to be allowed or whether a stay ought to be issued and
whether the Appeal Division has the power to authorize that the Appellant work.
The Appellant has made submissions as to
why the appeal ought to be allowed and does not feel it necessary to repeat
them. [. . .]
[35]
The
IAD’s decision states:
[…] In consequence, the panel requested
written submissions from counsel on how a stay of the appellant’s deportation
order might be rendered effective with regard to the work and study permissions
now denied the appellant. The panel regrets that its decision in this appeal
has not allowed it to take advantage of the intellectual acuity of counsel in
this regard.
[…] The appeal of Serguei Gorev OLSON is
dismissed.
[36]
In
my opinion, the IAD breached the principles of procedural fairness by failing
to provide applicant’s counsel with an opportunity to fully address the
substantive issues in the appeal. The IAD requested submissions with respect to
the stay issue and adjourned the hearing without allowing counsel to address
the merits of the appeal.
[37]
A
review of the hearing transcript shows that the IAD ruled that it would not be
allowing the appeal and requested submissions regarding its jurisdiction to
authorize the appellant to work or study. I am of the view that the submissions
made by counsel for the applicant with respect to allowing the appeal were not
full submissions, in the normal sense, as the IAD had already indicated that it
would not allow the appeal and only required submissions on its jurisdiction to
allow the applicant to work or study. The IAD breached the rules of procedural
fairness by failing to allow applicant’s counsel to make full submissions on
the merits of the appeal, and then dismissing the appeal.
[38]
Because
of my finding on Issue 1, I need not deal with the other issue.
[39]
The
respondent requested that I certify the following question as a serious
question of general importance:
What is the appropriate standard of review
for factual findings by the Immigration Appeal Division on appeals under the Immigration
and Refugee Protection Act?
[40]
The
applicant opposed the certification of this question. As I have based my
decision on procedural fairness, I am not prepared to certify a question.
[41]
The
application for judicial review is allowed and the decision of the IAD is set
aside and the matter is referred to a different panel of the IAD for
redetermination.
JUDGMENT
[42]
IT
IS ORDERED that the application for judicial review is allowed and the
decision of the IAD is set aside and the matter is referred to a different
panel of the IAD for redetermination.
“John A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
Immigration and Refugee Protection Act, S.C. 2001, c. 27.:
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36.(1)
A permanent resident or a foreign national is inadmissible on grounds of
serious criminality for
(a) having
been convicted in Canada of an offence under an Act of
Parliament punishable by a maximum term of imprisonment of at least 10 years,
or of an offence under an Act of Parliament for which a term of imprisonment
of more than six months has been imposed; . . .
67.(1)
To allow an appeal, the Immigration Appeal Division must be satisfied that,
at the time that the appeal is disposed of,
(a) the
decision appealed is wrong in law or fact or mixed law and fact;
(b) a
principle of natural justice has not been observed; or
(c) other than
in the case of an appeal by the Minister, taking into account the best
interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
(2) If the
Immigration Appeal Division allows the appeal, it shall set aside the
original decision and substitute a determination that, in its opinion, should
have been made, including the making of a removal order, or refer the matter
to the appropriate decision-maker for reconsideration.
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36.(1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants:
a)
être déclaré coupable au Canada d’une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction
à une loi fédérale pour laquelle un emprisonnement de plus de six mois est
infligé; . . .
67.(1)
Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé:
a)
la décision attaquée est erronée en droit,
en fait ou en droit et en fait;
b)
il y a eu manquement à un principe de justice naturelle;
c)
sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
(2)
La décision attaquée est cassée; y est substituée celle, accompagnée, le cas
échéant, d’une mesure de renvoi, qui aurait dû être rendue, ou l’affaire est
renvoyée devant l’instance compétente.
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