Docket: IMM-7666-14
Citation:
2016 FC 785
Ottawa, Ontario, July 8, 2016
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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CHUN JIE KUANG
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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
I.
Introduction
[1]
This is a judicial review of a decision by the
Immigration Appeal Division [IAD] upholding a Deportation Order issued by
virtue of a decision [Decision] of the Immigration Division [ID].
The
Applicant was found to be inadmissible on grounds of serious criminality
pursuant to s 36(1)(a) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] having been convicted of an offence under s 7(1) of the Controlled
Drugs and Substances Act, SC 1996, c 19.
[2]
It is important to note that the validity of the
Deportation Order was not in issue before the IAD. H&C considerations were
in issue and that is the only matter properly before the Court.
II.
Background
[3]
The Applicant is a citizen of China, a permanent
resident by virtue of the sponsorship of his wife from whom he is now divorced.
[4]
The Applicant separated from his wife two months
after his arrival in Canada allegedly on grounds that an injury to his toes so
disgusted his wife that the marriage collapsed. The couple divorced in February
2012.
[5]
The Applicant went to work as a chef on a farm
which turned out to be a “grow op”. Despite
knowing it was an illegal grow op, the Applicant stayed on, and was arrested
when the farm was raided by the RCMP.
[6]
He was convicted and given a conditional
sentence of two years less a day. At the time the offence could have resulted
in a sentence of up to seven years’ imprisonment.
[7]
The ID conducted an inadmissibility hearing
where the sole issue was whether a “term of
imprisonment” for purposes of IRPA s 36(1)(a) included a conditional
sentence.
[8]
Having been unsuccessful on that issue, the
Applicant appealed to the IAD and relied exclusively on H&C grounds for the
appeal. No appeal was made regarding the legal validity of the Deportation
Order – the issue of a conditional sentence.
[9]
The IAD decided against the Applicant on these
H&C grounds in June 2015.
[10]
Subsequently, the Applicant advised the Court of
the Federal Court of Appeal’s pending decision in Canada (Public Safety and
Emergency Preparedness) v Tran, 2015 FCA 237, 392 DLR (4th) 351
[Tran], which dealt with the issue of a conditional sentence in the
context of “a term of imprisonment”. Both
parties declined to make further submissions on the impact of the Tran
decision.
[11]
In the IAD decision, which is the subject of
this judicial review, the issue was whether there were sufficient H&C
considerations to warrant special relief in light of all the circumstances of
the case.
[12]
In the IAD decision, the relevant factors for
the exercise of IAD jurisdiction were identified as:
•
the seriousness of the offence in issue;
•
the remorsefulness of the Applicant;
•
the possibility and extent of rehabilitation;
•
the length of time in Canada and degree of
establishment;
•
the Applicant’s family in Canada and the impact
of removal;
•
the best interests of the child (if any);
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family and community support available; and
•
degree of hardship caused by removal.
[13]
In the IAD decision, the panel concluded:
•
the Applicant’s actions fell on the serious end
of the spectrum – a point admitted by his counsel;
•
the Applicant was remorseful and on the path to
rehabilitation – a positive factor;
•
the marriage was likely a marriage of
convenience and the Applicant working and paying taxes constituted limited
establishment;
•
the Applicant had no family in Canada so there
would be no significant impact resulting from his removal;
•
there were no children; and
•
despite the Applicant’s claim of hardship due to
risk of being disowned by his family, this was not an undue hardship.
[14]
The IAD’s conclusion was that negative factors
outweighed positive factors. Based on the crime committed, the length of
sentence, the short stay in Canada and the lack of establishment, a stay of
removal was not justified.
III.
Analysis
A.
Standard of Review
[15]
Considerable deference is owed to tribunals
exercising highly discretionary functions. The legal issue of whether a
conditional sentence constitutes a “term of
imprisonment” is not before this Court and the Court will not exercise
its discretion to broaden the judicial review beyond the IAD decision.
[16]
Since the legal validity of the ID’s decision is
not in issue, the substantive issue is the H&C aspect of the IAD decision.
The standard of review is reasonableness (Canada (Citizenship and
Immigration v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
To
the extent that there is a procedural fairness issue in respect to the comments
about the Applicant’s marriage, it is subject to a correctness standard of
review.
B.
Validity of Deportation Order
[17]
In Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR
654, the Supreme Court, while noting the breadth of a court’s judicial review authority
to consider an issue not raised before the tribunal where appropriate, held
that where an issue could have been raised but was not, this discretion should
not be exercised.
[18]
The Record establishes that the issue of a
conditional sentence counting as imprisonment was the only one before the ID.
However, the Applicant did not appeal the decision on that ground nor did he
make submissions to the IAD on that issue.
[19]
It would be inappropriate to now allow the
Applicant to seek judicial review on a grounds which he essentially abandoned
before the IAD and on which the IAD made no determination. Judicial review is
intended to be a review of the decision of a tribunal not to decide a matter at
first instance.
The
Court is mindful of the Tran decision and even if Tran were
reversed, the Court should not entertain this previously abandoned issue.
C.
H&C Assessment
[20]
The IAD considered the proper legal test and
factors as discussed in Ribic v Canada (Minister of Employment and
Immigration) (1986), [1985] IABD No 4 (Imm App Bd) [Ribic]. The IAD weighed
the relevant factors. Any suggestions that the analysis could have been more
expansive is nothing more than “armchair quarterbacking”
– the Applicant knew the factors addressed and the reason for the tribunal’s
determination.
[21]
If “deference” in
terms of respect for the function of the tribunal means anything, it is
accepting the very type of weighing of factors exhibited by the IAD.
[22]
There is no basis for overturning the H&C
determination.
D.
Procedural Fairness
[23]
The Applicant contends that by making a finding
that the marriage was one of convenience, the IAD breached procedural fairness
because there was no notice that the issue would be determined.
[24]
The Applicant’s reliance on Kaur v Canada
(Citizenship and Immigration), 2012 FC 273, 406 FTR 139, is misplaced. That
decision is distinguishable because the issue there was that the claimant was
inadmissible because she had misrepresented her marital status.
[25]
In the present case, there was no determination
as to the bona fides of the marriage as a grounds for inadmissibility.
At most, the marriage situation was context for a determination of whether the
Applicant was married or had a degree of establishment in Canada. Credibility
was not an issue in the Ribic factors.
[26]
The relevant determination was that the
Applicant was no longer married nor were there children at issue.
[27]
Since nothing turned on the IAD’s comment, there
was no breach of procedural fairness in this instance.
IV.
Conclusion
[28]
For these reasons, this judicial review will be
dismissed. There is no question for certification.
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