Docket: IMM-2177-13
Citation:
2014 FC 468
Ottawa, Ontario, May 14,
2014
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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GAK ATEM BULGAK
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
The Immigration Appeal Division of the
Immigration and Refugee Board of Canada [IAD] declined to grant a stay of a
deportation order made by the Immigration Division [ID], having considered
humanitarian and compassionate [H&C] considerations in accordance with the
IAD’s discretion under subsection 68(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
[2]
For the reasons that follow, that decision is
set aside.
Background
[3]
Mr. Bulgak is 24 years old. He was born to
Sudanese parents in a refugee camp in Ethiopia, moved to a refugee camp in Kenya around age three, and lived there until around age 10 when he moved to Canada with his parents and five siblings. He is the third child in the family.
[4]
He resides at home with his two younger siblings
who were 15 and 17 at the time of the hearing. His two older brothers are
deceased, and his father has been estranged for many years and has more
recently returned to South Sudan (or possibly Sudan).
[5]
His two older brothers became involved in drug
trafficking and criminal activity. One was shot in the family’s backyard and
the other died in a car accident as a result of his own intoxication. After
the death of her two eldest sons, Mr. Bulgak’s mother took the remaining
children to the USA for two years. She returned to Canada and currently works
away from Calgary in the oilfields in northern Alberta. At the time of the IAD
hearing, she was hoping to return to her occupation as a care aid, later in
2013.
[6]
Mr. Bulgak has been unemployed since 2008 and
generally relies on his mother for financial support. He cares for his
mother’s home and is the de facto guardian of his two minor siblings while she
is away.
[7]
On December 9, 2008, Mr. Bulgak pleaded guilty
and was convicted of possession of a machete with a 17 inch blade in his
vehicle, for which he received a suspended sentence and 12 months probation.
In that incident, police responded to a disturbance at which Mr. Bulgak and
others were present. Police found the machete and 4.5 grams of marijuana along
with a digital mini scale and $575 cash in Mr. Bulgak’s car.
[8]
During a separate incident, he pleaded guilty to
carrying a concealed weapon (a switchblade knife in his car) and was fined
$500, and he was also convicted of mischief under $5000 and fined $300 for
damaging a window and door of a night club, during the same incident. He has a
prior youth court conviction from April 25, 2007 for assault, for which he
received nine months probation. On a separate incident, he was also convicted
of obstruction for lying to a police officer about his name when he was pulled
over while driving.
[9]
Paragraph 36(1)(a) of the IRPA renders
inadmissible a permanent resident or a foreign national on grounds of serious
criminality for having been convicted of any offence punishable by a maximum
term of imprisonment of at least 10 years. Possession of a dangerous weapon
for a dangerous purpose contrary to section 81(1) of the Criminal Code of
Canada is punishable by up to 10 years in prison. On this basis, Mr.
Bulgak was rendered inadmissible.
Decision Under Review
[10]
The IAD found that Mr. Bulgak had led a troubled
life, having been exposed to violence and abuse as a child. It noted that his
mother would experience difficulty if he were removed having already lost her
two eldest sons, but that there would be no financial impact on her, nor were
there any positive connections to the community outside of his family
relationships. The IAD determined that there were no children that stood to be
affected by Mr. Bulgak’s removal, and therefore, did not consider the best
interests of the children. It is noted that this finding was not challenged in
this application; however, contrary to this finding, Mr. Bulgak took care of
his two minor siblings while their mother worked in the oil sands and the
effect of his absence on his two minor siblings should be considered when the
matter is re-determined.
[11]
The IAD determined that the most pivotal factor
was the likelihood of rehabilitation and seriousness of the criminal behaviour.
It determined that the conviction was serious because of the threat of physical
harm to the public, aggravated by the pattern of criminality. It noted that
Mr. Bulgak was relatively non-forthcoming about the details of the events
surrounding his criminal convictions until cross-examined and did not
demonstrate genuine remorse or acknowledgment of responsibility. The IAD noted
a credible assertion that his criminal troubles were generally associated with
alcohol abuse and acknowledged that he had reduced his drinking. However, the
IAD found that the alcohol abuse, possession of weapons, and ongoing use of a
motor vehicle were troubling combinations that had not been effectively
addressed and therefore, there was not a positive likelihood of rehabilitation.
[12]
The critical finding and that which is the basis
for this application was the determination by the IAD that because there was no
country of removal confirmed, no assessment of foreign hardship to Mr. Bulgak
was made.
Analysis
[13]
In Chieu v Canada (Minister of Citizenship
and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 [Chieu], the Supreme
Court of Canada decided that the jurisdiction of the IAD allows it to consider
potential foreign hardship a permanent resident would face if removed from
Canada; it is not restricted to only domestic factors. The Supreme Court
unanimously held that the onus is on the applicant to establish a likely
country of removal on a balance of probabilities. Where that burden has been
discharged, the IAD will be obligated to consider potential foreign hardship of
removal to that country. Where, however, the applicant fails to establish a
likely country of removal, and the Minister has not selected a country of
removal, the IAD will be unable to assess foreign hardship, and this is not an
error. In order to not assess foreign hardship, the IAD must make an explicit
finding that no likely country of removal has been established.
[14]
The Federal Court of Appeal in Ivanov v Canada (Minister of Citizenship and Immigration), 2007 FCA 315, [2008] 2 FCR 502 [Ivanov]
at para 11, held that “the failure to consider the
Ribic factor of foreign hardship is an error of law.”
[15]
As previously noted, the IAD determined here
that “while removal would inevitably require adjustment for the appellant, I
make no further assessment of that hardship because a country of removal was
not confirmed” (emphasis added). I agree with Mr. Bulgak that the IAD
imposed the wrong test in requiring that a country of removal be confirmed
in order to consider foreign hardship. The proper test is whether the likely
country of removal has been established on the evidence.
[16]
Mr. Bulgak submits that the objective evidence
in this case clearly established Sudan as the likely country of removal and he
points to the fact that there was no evidence that any other country was being
considered.
[17]
The Minister submits that there was no evidence
before the IAD that Mr. Bulgak was a citizen of Sudan, only that he was
Sudanese, without reference to which part of the country he was a citizen of
before its break up (Sudan, or South Sudan). In fact, the Minister says, the
evidence in the record suggests in one instance, that he was born in Ethiopia, and in another instance, in Uganda. There is also reference to him living in Kenya prior to Canada. It is submitted that he could have clarified the issue of citizenship by
presenting his Record of Landing, which was referred to before the ID.
Finally, it is said that there was no objective evidence about country
conditions in Sudan or any other country presented to the IAD and therefore his
hardship could not be assessed.
[18]
In my view, a reading of the record and
particularly the transcript of the IAD hearing at which both Mr. Bulgak and his
mother testified, makes it clear that all involved in the hearing accepted that
Sudan was the likely country of removal, although there may have been some
confusion as to whether Sudan or South Sudan were separate countries. The
evidence that leads me to this view is the following.
[19]
First, in an affidavit in the record sworn by
Mr. Bulgak’s counsel in respect of a motion to extend time for filing the
notice of appeal, she states that “Gak and his
family came to Canada as refugees from what is now Southern Sudan.”
[20]
Second, at the hearing itself, when asked what his
nationality was, the Applicant testified that he was “Sudanese, South Sudan.”
[21]
Third, his counsel led him down a line of
questioning related to what his connections were in Sudan. She asked him whether he would be able to live with his father, who had returned
to Sudan and he replied that it was not a possibility. He even clarified that
he was in fact “speaking of Sudan” when asked about going “home.”
[22]
Fourth, when his mother testified, she stated “he does not know anybody in Sudan… and you know, South Sudan, it’s not stable now.”
[23]
Fifth, counsel for Mr. Gak Atem Bulgak in her
submissions referred to him having “no connections
with Sudan other than a father, who is absent from the family.”
[24]
Sixth, and most importantly, counsel for the
Minister herself made submissions on Sudan, stating that “however,
at this point, he does have ties in Sudan of his father… If he has government
connections, I’m sure [his father would] be able to get him a job in Sudan, assist him to settle and find family and support there” (emphasis added).
[25]
I reject the submission of the Minister that
there was no evidence before the IAD of country conditions in Sudan or South Sudan. Even “scant”
evidence of foreign hardship is sufficient to trigger the requirement that it
be considered and analyzed. In Ivanov, the Court of Appeal found that
the applicant’s statement reproduced below, while scant, triggered a
requirement that the IAD consider foreign hardship:
If I have to be deported, there is no use of –
there is no other country I know. This is the only thing, I lived here, I grew
up, this is the people I love and the country I know. And if I have to be
deported, then I don’t even think I want to live, to be honest. There is no,
no – there is nothing there no more for me.
[26]
There was arguably more evidence in this case
than in Ivanov. Mr. Bulgak’s mother testified as follows:
He doesn’t know anybody in Sudan. He was born in Ethiopia and we came here to Canada. He doesn’t know anybody. His dad, he
just left. We don’t know him. He didn’t even say: “Okay, I’m
leaving.” He just left like that and I – I left alone with them. And you know
South Sudan, it’s not stable now. There is insecure [sic],
so I don’t know where to take this boy to. I’m not really sure because I don’t
have anybody and he doesn’t have any friend [sic]. He doesn’t know
anybody. (emphasis added)
[27]
In both this case and in Ivanov, there
was evidence that the applicant had no connection to the likely country of
removal. However, in addition to that hardship factor, here there was
evidence, as scant as it may have been, that the likely country of removal also
posed a hardship as it was not a stable and secure place to live.
[28]
For these reasons, the decision of the IAD must
be set aside and the matter remitted for redetermination, after a new hearing,
to a differently constituted panel.
[29]
Neither party had a question for certification
to propose.
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