Docket: IMM-5287-13
Citation:
2014 FC 496
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 26, 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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ONKAR SINGH SANGHA
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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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JUDGMENT AND REASONS
[1]
CONSIDERING the
application for judicial review of a decision by the Immigration Appeal
Division (IAD) of the Immigration and Refugee Board, dated July 22, 2013;
[2]
WHEREAS the IAD
had dismissed the appeal of a deportation order issued against Mr. Sangha on
September 2, 2010, by reason of inadmissibility on grounds of serious
criminality within the meaning of paragraph 36(1)(b) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (Act);
[3]
WHEREAS this is
an application for judicial review made under section 72 of the Act;
[4]
CONSIDERING the
parties’ submissions and upon reviewing the record, the Court has reached the
conclusion that the application for judicial review should be dismissed for the
reasons that follow.
[5]
The applicant became a permanent resident of
Canada on April 4, 1998, when he was 23 years old. In February 2003, he
sponsored a permanent residence visa application, which was refused in May 2004
when the visa officer determined that he had married his brother’s wife for
immigration purposes. Once she was sponsored in Canada, she would then sponsor
the applicant’s brother.
[6]
The offence that led to the application of
paragraph 36(1)(b) of the Act occurred in May 2004. The applicant drove
a semi-trailer to the United States loaded with a shipment of marijuana. The
shipment weighed 264 pounds and the applicant had made at least one delivery
prior to being intercepted by police. Released on $28,000 bail on July 8, 2004,
he returned to Canada while awaiting a court appearance in the United States.
[7]
A few months after his return to Canada, and
while his was still out on bail pending his trial in the United States, the
applicant got married on December 11, 2004. The couple purchased a house in
2005. They had a first daughter in 2005 and a second in 2011 after his
incarceration in the United States. Indeed, having failed to appear in court in
the United States, the applicant was arrested in Canada on an extradition
warrant. Released once again on $100,000 bail on September 13, 2007, he was
re-arrested on October 23, 2007 and detained for extradition. He was extradited
in April 2008. In January 2009 he pleaded guilty to two drug-related charges in
the United States. He served 24 months of a 28-month sentence (he was also placed
on probation for four years) and was deported to Canada in May 2010.
[8]
Thus, the applicant was held in detention for
the following periods since his arrest in May 2004:
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July to September 2007, and October 2007 to
April 2008: extradition to the United States;
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April 2008 to April 2010: served prison sentence.
He was detained for a total of 32 months.
[9]
The natural consequence of the sentence in the
United States ensued on September 2, 2010, when the applicant was
declared inadmissible by the Immigration Division pursuant to paragraph 36(1)(b)
of the Act, which reads as follows:
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Serious
criminality
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Grande
criminalité
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36. (1) A permanent
resident or a foreign national is inadmissible on grounds of serious
criminality for
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36. (1) Emportent
interdiction de territoire pour grande criminalité les faits suivants :
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[…]
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[…]
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(b) having been
convicted of an offence outside Canada that, if committed in Canada, would
constitute an offence under an Act of Parliament punishable by a maximum term
of imprisonment of at least 10 years; or
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b) être déclaré
coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans;
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[10]
That decision was appealed to the IAD under
section 63 of the Act. The applicant is seeking to avail himself of the
provision at section 67 and is attempting to rely on paragraph 67(1)(c),
which reads:
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Appeal allowed
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Fondement de
l’appel
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67. (1) To allow an
appeal, the Immigration Appeal Division must be satisfied that, at the time
that the appeal is disposed of,
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67. (1) Il est fait
droit à l’appel sur preuve qu’au moment où il en est disposé :
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[…]
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[…]
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(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.
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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
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[11]
The issue here is whether the IAD’s decision, in
which it was determined that there were insufficient humanitarian and
compassionate grounds, taking into account the best interests of the children
affected by the decision, to warrant special relief, is reasonable.
[12]
Indeed, the standard of review to be applied is
reasonableness. The leasing case with respect to this matter is Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339 (Khosa]),
in which the Supreme Court was called upon to determine which standard of
review was to be applied, on judicial review, to an IAD decision in relation to
the application of paragraph 67(1)(c) of the Act, which is exactly the
situation we find ourselves before today. After a lengthy analysis, the Court
had concluded that a reasonableness standard ought to be applied. We will
therefore proceed accordingly.
[13]
The role of a judge in a judicial review is not
to substitute his or her view of the facts, but rather, to ensure that the
decision rendered was reasonable. Thus, the decision must be within the realm
of reasonableness in the sense intended in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir):
In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But 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.
(Para 47.)
[14]
Sympathy is not enough. The applicant is in need
of a demonstration that a highly discretionary decision was unreasonable. Such
a demonstration has not been made.
[15]
It is not in dispute that discretion is
exercised with the aid of the non-exhaustive list of factors to consider set
out in Ribic v Canada (MEI), [1985] IABD No 4 (QL) and confirmed by the
Supreme Court in Chieu v Canada (Minister of Citizenship and Immigration),
2002 SCC 3; [2002] 1 S.C.R. 84 and Khosa:
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the seriousness of the offences;
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the possibility of rehabilitation;
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length of time spent in Canada and degree of establishment;
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the impact on the family in Canada;
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the community support available;
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that hardship the person would experience if
they were to be returned to their country of origin;
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and any other relevant circumstances of the case.
[16]
I cannot help but find the decision in Khosa striking.
The facts, which in my view were significantly more sympathetic than those in
the present case, nonetheless produced a refusal to apply the provisions of
paragraph 67(1)(c) of the Act. Mr. Khosa, an Indian citizen, was 18
years old when he participated in a street race the end result of which was a
conviction for criminal negligence causing death. The British Columbia Court of
Appeal had even concluded that the possibilities of rehabilitation were good,
his remorse was genuine and Mr. Khosa had never committed a crime prior to this
conviction. The Supreme Court deferred to the analysis by the IAD, which had
dismissed Mr. Khosa’s appeal. The weight given to different factors is owed
deference.
[17]
To be sure, the IAD is required to conduct its
own analysis, as each matter turns on its own specific facts. And this analysis
was well articulated. In the present case, I fail to see how the IAD can be
criticized for having assigned significant weight to the offences committed and
to the circumstances surrounding the subsequent conviction. Not only were the quantities
of marijuana considerable, but the applicant failed to meet his obligations,
becoming a fugitive whose extradition to the United States our government was
forced to order.
[18]
The IAD demonstrated concern with regard to the
possibilities of rehabilitation. At the time his inadmissibility to Canada was
being reviewed, the applicant continued to claim that he had been unaware that
marijuana was illegal in the United States. Rather stunning. Indeed, such an attitude
diminishes the relative weight of the remorse the applicant claims to feel. One
has to wonder whether it is not confusion between remorse and regrets, regrets
about having risked so much for financial gain. The applicant ended up losing
many assets, served 24 months in prison in addition to eight months in
preventive detention and is currently facing deportation.
[19]
If there are any positive aspects, they are more
with regard to the impact the deportation could have on his family. This is not
negligible. And the consequences are clear to see.
[20]
But these consequences naturally arise from the
offence committed in May 2004, from the applicant’s flight during the three
years that followed, and from the subsequent three years he spent in detention.
For him to attempt to show a high degree of establishment in Canada since his
deportation in mid-2010, when he knows he is facing deportation from Canada in
view of his inadmissibility, is certainly positive, but I fail to see how this could
carry more weight than the other factors examined.
[21]
The IAD also examined the alleged hardship the
applicant would face if he were to return to India and the fact that he had
attempted to commit immigration fraud in 2003. The allegation regarding the
danger for truck drivers in India was not very convincing and immigration fraud
is certainly not a positive factor, especially given the fact that other
criminal charges were pending against the applicant at the time of the IAD decision.
[22]
However, these factors appear to me to have been
discussed more for the purposes of thoroughness than to attribute considerable
weight to them. An abuse of the Act from 10 years ago and charges to which a presumption
of innocence apply carry little weight compared to the seriousness of the
offences committed in the United States and an attitude that shows only slight
remorse.
[23]
The applicant failed to discharge his burden of
demonstrating that the weight assigned to the various factors listed was not reasonable,
rendering the decision unreasonable within the meaning of Dunsmuir.
[24]
The decision-making process was transparent and
intelligible and the outcome was one that was possible and acceptable. The
applicant’s arguments seek a re-weighing of the facts –“the
IAD did not assign the necessary weight to the following factors,” wrote
the applicant- which is not the role of this Court in a judicial review. The
IAD is a specialized tribunal, one of whose tasks is to review these types of
cases; it applied the correct test, and its reasoning was clear and
justifiable.
[25]
Accordingly, the application for judicial review
is dismissed. No serious question of general importance was proposed by the
parties and there is no question for certification.
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