Date: 20070524
Docket: IMM-5794-06
Citation: 2007 FC 547
Ottawa, Ontario, May 4, 2007
PRESENT: THE
HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
CESAR-AUGUSTO FAJARDO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Cesar-Augusto Fajardo was granted refugee status by
the Canadian authorities while he was still in Guatemala, his native land.
Thus, at the age of 25, he arrived in Canada in 1989.
[2] Ten years after his arrival in Canada, Mr. Fajardo
was found guilty of assault against his spouse. He was then convicted for two offences that are punishable by a potential maximum penalty
of at least five years of imprisonment. Under the former Immigration
Act, R.S.C. 1985, c. I-5 (the Act) that applies in this
case, the Immigration and Refugee Board, on February 10, 2000, that Mr. Fajardo
was then, inadmissible in Canada, and that, therefore, he had to be deported
from Canada, as provided for in subsection 32(2) of the Act. The applicant
decided, however, to appeal from the decision whereby he was ordered to be
removed. Following that, a decision was rendered on May 9, 2001
whereby he was granted a stay of execution of the
removal order for a period of five years. That stay was granted
under several conditions that the applicant undertook to observe at the time
that decision was delivered.
[3] In November 2002, at the time of review of the stay,
the Immigration Appeal Division (IAD) decided
to maintain the same conditions that had been imposed at the time, upon the
consent of both parties. Finally, it was last year that the final review of the
stay of execution in this case took place.
[4] The IAD was of the view that Mr. Fajardo had not
observed the conditions that had been imposed on him and that he had not
established, at the hearing, on the balance of probabilities and as per the
facts of the case, grounds for which he should not be removed from Canada;
therefore, the IAD held that the removal order was legally valid, and thus
effective as of that date. Therefore, it set aside the stay and dismissed the
appeal.
[5] Mr. Fajardo is seeking judicial review of that
decision.
ANALYSIS
[6] At the outset, it is relevant to say that, in support of
his arguments, Mr. Fajardo and his spouse have submitted to this Court
additional affidavits that were not before the IAD at the time it rendered its
decision in September 2006. Needless to say, the Minister asked the Court
to decline to take into account that additional evidence, and then asked,
should the Court decide otherwise, to itself file additional evidence that also
called for the consideration of the Court.
[7] Having heard those submissions at the hearing, I stated
that nothing warranted any deviation from the general rule to the effect that,
in judicial review proceedings, the Court will only consider evidence that was
before the tribunal when the latter rendered its decision. Of course, there can
always be exceptions in special circumstances, but in this case, it cannot be
said that the record reveals any.
[8] In this case, two of the conditions that were imposed on
Mr. Fajardo to have maintained the stay to which he was entitled and on
which the decision of the IAD was based call for particular attention. The
first relates to the employment of the applicant. Mr. Fajardo was to make
reasonable efforts to secure and keep full-time employment in Canada. The
second relates to the criminal past of the applicant. Mr. Fajardo was to
follow or continue to follow a psychological treatments or receive counselling to
address violent behaviour.
[9] On May, 2001, the member stated as follows:
[TRANSLATION]… You will appear before me. I am looking at you,
straight in the eyes, and I am telling you that I will remember, I have
carefully noted everything that occurred in this file, I will review my notes
and believe you me, if I see that you have made no efforts to control your
violent behaviour, and… that you have not observed the conditions, believe you
me, it will be an uphill battle for you to convince me that you should stay in
Canada. So I hope that you are taking this seriously and … [(…)]
[10] Since 2001, Mr. Fajardo made very little effort,
indeed none, to find employment. However, he is the father of several children
from several spouses and he alleges that, today he is taking care of a number
of them. Despite that, the IAD stood by the very letter of the condition and
opined that Mr. Fajardo had a duty to make reasonable efforts to secure
and keep full-time employment, which he has not done.
[11] At his point, I must note that I am uncomfortable with the
position of the IAD as to this aspect of the case, since it appears not to take
into account the work done at home by a parent who responds to the numerous
needs of a child. I am afraid that, on the part of the IAD, such a notion of
family life according to which a father must have employment outside the
household, is a stereotype and that it thereby gives credence to an
unfavourable social attitude concerning child care, even though child care is
quite natural and essential to ensure sound development of Canadian children.
[12] In addition, the IAD found that Mr. Fajardo had not
made reasonable efforts to obtain the services of a daycare centre. Should it
be inferred that, in Canada, parents are not authorized to take care of their
own children themselves? This might be the case, I sure hope not. I am rather
of the view that a parent who wants to personally provide care to his own
children is entitled to do so.
[13] Fortunately, having carefully read the record, I have been
able to put things in perspective. Briefly, Mr. Fajardo is on welfare, he
does not live with his current spouse, and he practices sports during weekends
and has made no effort to find employment.
[14] That being said, it would not be appropriate for me now to
examine that aspect of the case in view of my limited authority.
[15] The case law is well settled. Decisions made by the IAD as
to questions of fact and as to questions attracting the preponderance of the
evidence standard must stand, unless they are patently unreasonable. In any
event, the Court should not disturb such decisions, even though it would have
reached a different conclusion from that of the tribunal if it had been called
to rule on it in the first place: Grewal v. Canada (Minister of Citizenship
and Immigration) 2003 FC 960 and Vong v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1317.
[16] In these proceedings, the crucial issue is raised by the
second condition noted hereinabove. Mr. Fajardo has not followed or
continued to follow psychological treatments or counselling to address his
violent behaviour. In fact, he is of the view that he does not need it. In the
circumstances, that is not for him to say, and from the pronouncements of the
courts that have convicted Mr. Fajardo in criminal proceedings, the truth
is otherwise. In addition, that was a condition that he had personally
undertaken to observe when a stay was ordered.
[17] In view of the circumstances, the decision of the IAD is
not patently unreasonable.
[18] As of this day, Mr. Fajardo may apply for a
pre-removal risk assessment and, of course, his spouse may sponsor him.
[19] For the above reasons, this application for judicial
review is dismissed. There is no question of general
importance to be certified in this case.
ORDER
THIS COURT ORDERS that
this application for judicial review be dismissed. There
is no question of general importance to be certified in this case.
“Sean Harrington”
Certified true
translation
François Brunet, LLB,
BCL
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