Date:
20131209
Docket:
IMM-2845-13
Citation:
2013 FC 1223
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, December 9, 2013
PRESENT: The Honourable Mr. Justice Simon
Noël
BETWEEN:
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MUSTAFA YUZGULEC
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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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REASONS FOR ORDER AND ORDER
I. Introduction
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) of a decision, dated March
27, 2013, by a member of the Immigration Appeal Division (IAD) of the
Immigration and Refugee Board of Canada dismissing the applicant’s appeal from the
removal order issued against him by the Immigration Division (ID) on March 24, 2010
following a determination of inadmissibility in application of paragraph 36(1)(a)
of the IRPA.
II. Facts
[2]
The
applicant was born in Turkey on September 27, 1986, and arrived in Canada
in October 1986 when he was one month old. He obtained permanent resident
status on March 19, 1992. He is not a Canadian citizen.
[3]
In
2008, the applicant was convicted of drug trafficking and received a six-month
conditional sentence
[4]
Following
these convictions, a report pursuant to subsection 44(1) of the IRPA was
written on September 17, 2009, and the Minister referred the matter to the ID on
November 24, 2009, pursuant to subsection 44(2) of the IRPA.
[5]
After
an investigation by the ID, the applicant was declared inadmissible on
March 24, 2010.
[6]
He
appealed that decision before the IAD, which heard the appeal on January 22,
2013, and rendered its decision on March 27, 2013, dismissing the
applicant’s appeal and refusing to grant a stay of removal.
III. Impugned
decision
[7]
The
IAD ultimately found that the removal order issued against the applicant was
well founded in law, in particular because he had not, on a balance of
probabilities, discharged his burden of establishing that, in the circumstances
of this case, he ought to be granted special relief on humanitarian and
compassionate grounds and because it was in the best interests of a child.
[8]
In
its decision, the IAD noted various errors or inconsistencies in the
applicant’s testimony that undermined his credibility. Here are a few notable
examples. The applicant contradicted himself about knowing the identity of the
persons with whom he committed the offences. He also contradicted himself when
he claimed to have been involved in drug trafficking for 5 months, when in
fact it was more like 10 months. The applicant became mixed up when asked
about the number of charges he faced in 2011, stating that it was four rather
than six. He claimed to have committed the offences for which he was convicted
in 2009 because he was having financial problems and because of the bankruptcy
of the business he worked for, when it was not until 2011 that it went bankrupt.
The applicant subsequently changed his story and stated that he was influenced
too easily.
[9]
The
hearing also led the IAD to the conclusion that the applicant was not even
conscious of the fact that he was on probation at the time of the hearing and
that he was unable to remember all of the offences he had been charged with. In
addition, the applicant was facing two other charges at the time of the
hearing – one for fraud, another for possession of narcotics – about which
he knew few details even though these had been recent incidents. Furthermore,
the applicant had a removal order against him since 2010, but continued to
commit crimes and to reoffend. For all of those reasons, the IAD determined
that the applicant did not take his criminal behaviour seriously and that he
was not likely to comply with the conditions that would be imposed on him in
the event he were to be granted a stay.
[10]
With
respect to the seriousness of the applicant’s criminal past, the IAD noted,
among other things, that he admitted to having ties to organized crime, in
particular the Hells Angels, and that he had been convicted of numerous offences.
[11]
As
for any support that could be provided to the applicant by his friends and
family, the IAD found that he had already benefited from the support of this
network and nothing had changed: his network had never been able to keep him on
the straight and narrow.
[12]
The
IAD also took into account the feeble attempts made by the applicant in his
studies and work. With regard to his employment, the IAD was of the opinion
that the applicant had not worked much and had not made enough of an effort to
find employment given his criminal record. In terms of his studies, the
applicant, who has not obtained a high school diploma, tried twice to obtain
his Secondary V equivalency. The last time, he arrived late for the exam and
was refused admittance. The IAD saw in these actions a lack of will. The
applicant stated that he had moved into his mother’s home – to which
he contributes nothing financially – so that he could be under her
supervision, but given that he had only been living there for three or four
months, the IAD found that this was simply a gesture to impress the panel. The
same conclusion applies to the applicant’s meagre and unsuccessful efforts at
doing volunteer work in January 2013.
[13]
In
addition, the IAD examined the issue of the best interests of a child likely to
be affected by the removal order, in this case his godson, his best friend’s
son, who was born two weeks before the hearing; the applicant has no children
of his own. The IAD was of the opinion that the best interests of the child
were not relevant to the case.
[14]
Furthermore,
the applicant raised humanitarian and compassionate considerations in support
of his appeal application. He stated that he feared returning to Turkey, in particular
because he had not fulfilled that country’s compulsory military service and
therefore risked prosecution and imprisonment. The IAD cited the few efforts
made by the applicant to verify whether he was in fact subject to this
obligation; the applicant did not even bother making any inquiries at the
embassy, which the IAD construed as negligence. Instead, the documentary
evidence appears to indicate that the applicant could be exempted from this obligation
and, at any rate, the fact of his having to fulfill his military service is not
a sufficient humanitarian and compassionate consideration. The applicant further
stated that he did not know anyone in Turkey and that he did not speak Turkish.
However, the applicant’s father and one of his aunts live there. In short, the IAD
found that the various humanitarian and compassionate grounds raised by the
applicant were not enough to counter the negative effects of his poor record.
[15]
The
IAD further concluded that in light of the high number of convictions for
reoffending, omissions and failure to comply, the applicant’s possibilities for
rehabilitation were very low, or indeed non-existent, and the chances that he
would comply with any conditions imposed on him as a result of a stay were slim
to none.
[16]
Lastly,
the IAD indicated that the only factor in the applicant’s favour was the fact
that he has lived here a long time, but that this factor alone was not
sufficient to overcome the other negative considerations, particularly his
negligible contribution to Canadian society.
[17]
The
IAD indicated that it had no confidence in the applicant, in particular due to
the seriousness of his criminal record and his recidivism, the low likelihood
of rehabilitation, his negligible contribution to Canadian society, the little
support he would receive from his family, his lack of remorse and the fact that
he takes his criminal behaviour and removal order lightly. Moreover, it was not
in the least convinced that would comply with the conditions of any potential
stay.
IV. Applicant’s
arguments
[18]
The
applicant submits that the IAD’s decision is unreasonable and raises
five arguments in support of his claims.
[19]
First,
the IAD examined his testimony in a microscopic way for the purpose of pointing
out contradictions or implausibilities regarding non-determinative elements.
The applicant also casts doubt on the relevance of certain details the IAD focused
on in its decision, such as the fact that he could not remember the names of
old acquaintances from 2008 or did not know the exact number of charges he was
facing for a specific offence, details he deemed to be of little importance and
which could not seriously mine his credibility.
[20]
Second,
the IAD did not correctly assess the evidence in the record, in particular,
that which related to the links between the applicant and organized crime, his
relationship with his family, the reasonable explanations he provided as to why
he had been unable to find employment. On this point, the applicant contends
that his sister’s testimony – which the IAD characterized as credible – substantiated
his assertion that he had made efforts to seek employment.
[21]
Third,
the IAD had not been receptive, sensitive and attentive to the best interests
of the child directly affected by the applicant’s removal, namely, his godson. The
IAD mixed up the child’s sex, referring to it as a girl when in fact it was a
boy, thus demonstrating a lack of sensitivity with regard to the child.
[22]
Fourth,
the IAD incorrectly assessed the hardships the applicant would face upon his
return to Turkey, particularly because of the fact that he has spent his entire
life in Canada and knows nothing about Turkey, the country he left when he was
a month old and to which he has never returned. He has no contacts in Turkey,
except for his father, with whom he does not speak, and an aunt he does not
know. The IAD should have considered the documentary evidence in the record
showing that he would surely be arrested upon his arrival in Turkey and
prosecuted for not having fulfilled his compulsory military service.
[23]
Fifth,
the IAD erred because it had not indicated in its reasons why it had not taken
into account its past decisions regarding the granting of a stay when it ought
to have done so.
V. Respondent's
arguments
[24]
The
respondent contends that the IAD’s decision is reasonable and employs two arguments
in support of this position.
[25]
First,
the IAD’s decision is reasonable since it was arrived at after a review all of
the relevant evidence that was before it. The applicant is simply asking the Court
to re-weigh the evidence because he is unhappy about the importance the IAD assigned
to various pieces of evidence, when the role of the Court is limited to
determining the reasonableness (or lack thereof) of the impugned decision.
[26]
Thus,
the IAD did in fact undertake a detailed review of the following elements: the
seriousness and circumstances of the applicant’s criminal behaviour, the slim
possibility of rehabilitation and his negligible contribution to Canadian
society, the little support his family could provide for him and the tenuous
reestablishment challenges he would face.
[27]
Second,
the IAD was under no obligation to evaluate its past decisions because it was
required to make findings following its own assessment of the evidence. The
principle of judicial comity does not apply to questions of fact and the
granting of special relief is a discretionary power that is essentially a
matter to be assessed on a case by case basis. Furthermore, in most of the decisions
cited by the applicant, the appellant had taken steps to turn his life around,
which is not the case with the applicant. At any rate, the IAD does not have to
refer to all of the arguments in its reasons.
[28]
All
in all, the respondent submits that the IAD proceeded with the analyses
pursuant to paragraph 67(1)(c) and subsection 68(1) of the IRPA and
that its decision was reasonable.
VI. Applicant’s
reply memorandum
[29]
The
applicant filed a memorandum in reply to the respondent’s claims in which he
essentially referred to various arguments that had already been raised in his
original memorandum. He therefore raised no new argument that would be worthy
of mention in this case.
VII. Issues
[30]
In
their respective memoranda, the parties raise different issues which I would
rephrase as follows:
1. Did
the IAD err in its assessment of the evidence, particularly with regard to the
best interests of the child and the risks the applicant would face upon returning
to Turkey?
2. Was
the IAD required to address its past decisions in similar cases?
VIII. Standard
of review
[31]
The
first issue relates to the assessment of evidence by the IAD and thus constitutes
a question of mixed fact and law that is reviewable on a standard of
reasonableness and subject to considerable deference (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 58, [2009] 1 SCR
339; Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR
190 (Dunsmuir)).
[32]
The
second question at issue is a question of law and must therefore be reviewed on
a correctness standard (Dunsmuir, above, at para 59).
IX. Analysis
Preliminary remarks
[33]
Before
undertaking an analysis of the issues, some details on the factual and legal
background of this case should be provided.
[34]
In
Canada, a permanent can be declared inadmissible for serious criminality if
they commit one of the offences set out in subsection 36(1) of the IRPA
and, as a result, be subject to a removal order pursuant to paragraph 45(1)(d)
of the IRPA. A permanent resident against whom a removal order has been issued
may appeal to the IAD under subsection 63(3) of the IRPA.
[35]
Section 66
of the IRPA provides three options to the IAD, which may either allow the appeal,
stay the removal order, or dismiss the appeal. In situations where a permanent resident
submits and establishes the existence of humanitarian and compassionate
grounds, the IAD has but two options: it may allow the appeal (IRPA, para 67(1)(c)
and ss. 68(1)). If such is the case, the IAD must be satisfied “that 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.” If the IAD decides to stay the
removal order, it must impose the conditions set out in section 251 of the
Immigration and Refugee Protection Regulations, SOR/2002-227.
[36]
In
order to decide whether to exercise its discretion, the IAD must take into
consideration the factors established in Ribic v Canada (Minister of Employment and Immigration), [1985] DIAD No 4 (QL/Lexis), and upheld by the
Supreme Court of Canada in Chieu v
Canada (Minister of Citizenship and Immigration), 2002 SCC 3
at paras 40 and 41, [2002] 1 SCR 84 (Chieu).
A decision of this Court, Kacprzak v Canada (Minister of Citizenship and Immigration), 2011 FC 53, [2011] FCJ No 59, summarizes these criteria at
para 29:
[29] The relevant factors set out in Ribic,
above, are the following:
a.
the
seriousness of the offence leading to the removal order;
b.
the
possibility of rehabilitation;
c.
the
length of time spent in Canada and the degree to which the applicant is
established;
d.
family in
Canada and the dislocation to that family that deportation of the applicant
would cause;
e.
the
support available for the applicant not only within the family but also within
the community; and
f.
the
degree of hardship that would be caused to the applicant by his return to his
country of nationality.
[37]
The
onus of establishing these reasons falls on the permanent resident (Chieu, above, at
para 90).
This means, therefore, that it is always up to the applicant to persuade the IAD
that there are sufficient reasons for him to remain in Canada.
A. Did the IAD err in its assessment
of the evidence, particularly with regard to the best interests of the child
and the risks the applicant would face upon returning to Turkey?
[38]
The
Court is of the opinion that the IAD did not err in its assessment of the
evidence in the record, both generally and with respect to the best interests
of the child, as well as with respect to the hardships the applicant would face
upon returning to Turkey. The decision is reasonable because the IAD relied on
the evidence that was before it before making its decision and because it
addressed all of the important elements in its decision. The applicant, in
effect, is asking this Court to re-examine the evidence in the record, which is
not within its jurisdiction to do.
1. Children - Best
interests of the child
[39]
The
applicant claims that the IAD was not receptive, sensitive and attentive to the
interests of the child directly affected by the removal order issued against
him. As the sole argument in support of his allegations, the applicant contends
that the IAD made an error regarding the sex of the child, referring to the
applicant’s godson as a girl, when he is obviously a boy. The applicant submits
no other argument. The Court acknowledges that this was indeed an error, but
nonetheless finds that the applicant has not demonstrated how this simple
mistake, which is basically anecdotal, renders the decision unreasonable.
2. Risks
upon returning to Turkey
[40]
The
applicant asserts that the IAD wrongly assessed the hardships the applicant
would face upon returning to Turkey. For its part, the respondent is of the
view that the IAD did consider the tenuous adaptation difficulties that the
applicant would face if he were to return to the country of his birth. The Court
agrees with the respondent’s arguments. Relying on the evidence in the record,
the IAD reasonably concluded that the applicant would not face undue hardship,
in particular because he knows people who live in Turkey, including his father.
[41]
Specifically,
with regard to compulsory military service in Turkey, the Court is of the view
that it was reasonable for the IAD to conclude that the applicant had
demonstrated carelessness since he made no effort to find out if there was any possibility
of postponing his compulsory military service or being exempted from this
obligation, given the fact that he arrived in Canada when he was only one month
old. In its decision, the IAD stated that it had read the documentary evidence
on compulsory military service, but that the applicant by his own admission had
never made any inquiries at the embassy about his options in this regard. His
claims were based on Internet searches. Yet the evidence in the record shows
that it is possible to defer this obligation or have it reduced. The IAD’s
conclusion was therefore reasonable.
3. Assessment of the
evidence generally
[42]
On
this point, the applicant raises two objections: first, that the IAD analyzed
his testimony microscopically for the purpose of pointing out contradictions or
implausibilities regarding non-determinative elements, and second, that the IAD
erred in its analysis of the evidence.
[43]
Thus,
the applicant alleges that the IAD analyzed his testimony solely for the
specific purpose of finding inconsistencies therein and casts doubt on the importance
it assigned to certain details, such as the fact that he was unable to recall
the names of old acquaintances from 2008 or that he was not aware of the exact
number of charges he was facing for a particular offence. The applicant sees in
this an “overzealousness” on the part of the IAD and feels that these details
should in no way be used to undermine his credibility.
[44]
Admittedly,
taken individually, the inconsistencies and contradictions noted by the IAD may
not appear to be determinative of the application, but the applicant’s errors
and hesitant or evasive answers are so numerous so as to make them so. The
applicant, who was represented by counsel, was apparently unaware of his
lengthy criminal record. Asked about this numerous times, he simply did not
provide enough details to satisfy the IAD, particularly with regard to the
persons with whom he committed the offences and the circumstances surrounding
those offences or even the sentences he later received for them. Among the
fatal errors made by the applicant, one that stood out was that he did not
appear to be aware of the fact that he was subject to a probation order at the
time of the hearing or that as a result of this order he had an obligation to
comply with a series of conditions.
[45]
As
for the fraud charges from 2009, the applicant states that he did indeed commit
these offences because the company he was working for was going through a
difficult period. Although the company declared bankruptcy in 2011, the
difficult period would necessarily have preceded the bankruptcy. However, regardless
of what he claims in his memorandum, the applicant did in fact acknowledge at
the hearing that he had mistakenly cited the bankruptcy of the company he worked
for as a reason for having committed fraud. He explained that he needed the
money to pay phone bills and credit card statements, in addition to paying for
the cars he owned. The Court must therefore conclude that the applicant appears
to want to tailor his testimony.
[46]
The
applicant also claims that the IAD incorrectly assessed the evidence in the
record. He maintains that he was never affiliated with the Hells Angels and
that this is a significant error on the part of the IAD. A re-reading of the
hearing transcript shows that, when asked which criminal organization or gang he
had ties with at a certain period, the applicant answered: [translation]
“I think it was for the Hells
Angels, for the bikers. I don’t know if it was really for the Hells or … (sic)”
(Hearing Transcript, p. 134). The fact remains that the applicant himself
stated that he thought he had been associated with the Hells Angels. It would
be difficult to criticize the IAD for having drawn such a conclusion, which was
completely reasonable given the evidence that was before it.
[47]
In
addition, the applicant argues that his sister was a minor at the time he
committed his offences and that this is why she had been unable to supervise
him. He submits that things have since changed a great deal and that the IAD
should have considered that. He adds that he was not always able to receive
support from his family because they did not take his situation seriously. He
further suggests that the IAD disregarded his reasonable explanations as to why
he had not been able to find employment and his sister’s testimony
corroborating his efforts to find work. However, the IAD did not disregard the
applicant’s explanations; it even referred to them in its analysis. It simply
arrived at a different conclusion after having examined the evidence as a
whole, including the testimony of the applicant’s sister. Therefore this conclusion
was also reasonable.
[48]
Aside
from the aforementioned elements, in a general manner, the IAD reasonably
considered the other relevant factors from Ribic and Chieu, above,
including the presence in Canada of the family of the person subject to the
removal and the dislocation to the family that his removal would cause, the
length of time spent in Canada by the applicant and the support available to
him within the family.
[49]
Lastly,
in its reasoning, the IAD gave considerable weight to two other elements, that
is to say the seriousness of the offence leading to the removal and the
possibility of the applicant’s rehabilitation. Indeed, the applicant was
convicted of trafficking in narcotics in 2008, an offence that led to his
inadmissibility. And the fact that the applicant was under a removal order did
not prevent him from pursuing his criminal endeavours. In 2010, he was
convicted on several charges of fraud. He was also convicted of breach of
conditions and failure to comply with orders of this Court in 2011. In 2012, he
pleaded guilty to charge of obstruction; not to mention that at the time of the
hearing the applicant was facing charges in two cases, one for fraud, the other
for possession of narcotics. This is what may be described as quite an
extensive record for someone facing removal.
[50]
The
sheer extensiveness of the applicant’s criminal activities is such that it
would be inconceivable for the IAD not to have taken this into account when it
assessed the possibility of the applicant’s rehabilitation. Indeed, the
applicant never expressed any remorse for his actions. It was quite reasonable
for the IAD to conclude that there was little likelihood of the applicant
complying with the conditions that would be imposed on him in the event he were
to be granted a stay: he had already been convicted of breach of conditions and
he continued to pursue his criminal activities after having learned that he was
subject to a removal order.
4. Assessment of the
evidence – Conclusion
[51]
In
short, as the respondent pointed out, the applicant is asking the Court to
re-examine the evidence in the record because he is dissatisfied with the
weight given to various pieces of evidence by the IAD. But it is not for a
reviewing court to reweigh the evidence: this had already been reasonably done
by a decision maker with considerable discretion, in this case the IAD. Based
on the testimony given at the hearing and the evidence in the record, the Court
is not persuaded by the applicant that the findings of fact made by the IAD are
unreasonable, as they fall within a range of possible outcomes in respect of
the facts and law, in addition to being intelligible and supported by reasons.
As this Court noted in a very similar case:
[50] The
applicant alleges that these factual findings were erroneous, or that the IAD
failed to consider his evidence and drew unreasonable conclusions.
[51] An analysis of his
allegations reveals that he wishes the Court to re-weigh the evidence. The problem with this argument is that courts on judicial review
cannot simply re-weigh the evidence and substitute their opinions unless the
decision does not, according to Dunsmuir, supra, “falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law”; or, if you wish, constitutes perverse and capricious findings under
paragraph 18.1(4)(d) of the Federal Courts Act (Sahil v. Minister of
Citizenship and Immigration, 2008 FC 772, at paragraphs 9 and 10; Matsko
v. Minister of Citizenship and Immigration, 2008 FC 691, at paragraph 8;
and Barm v. Minister of Citizenship and Immigration, 2008 FC 893, at
paragraph 12).
(Sharma v Canada (Minister of Citizenship and Immigration),
2009 FC 277 at paras 50-51, [2009] FCJ No 339.)
[52]
Moreover,
on the face of the record and in light of the details of this case, it was
entirely reasonable for the IAD, under the circumstances, to have given
considerable weight to some of the criteria set out in Ribic and Chieu,
above, including the fact that the applicant had only a very slim possibility
of rehabilitation, before dismissing his appeal. The IAD was required to engage
in an overall balancing exercise and could decide for itself how much weight to
assign each of the elements. The decision is therefore reasonable and the intervention
of the Court is not warranted on this issue.
B. Was the IAD
required to address its past decisions in similar cases?
[53]
The
applicant submitted to the decision-maker a series of decisions the IAD itself
had issued in similar circumstances and argues that the IAD had an obligation
to analyze these decisions and explain in its reasons why it decided not to
follow that jurisprudence. The respondent is of the opinion that the IAD was
under no such obligation.
[54]
The
Court agrees with the respondent’s position and must answer the question at
issue in the negative. The granting of a stay is an extraordinary and
discretionary measure and is reflective of the fact that each case turns on its
own facts, has different facts, and requires an examination of the evidence in
the record (Bal v Canada
(Minister of Citizenship and Immigration), 2008 FC 1178 at para 36, [2008] FCJ No 1460). The applicant relies on this
decision, which he interprets as somehow creating an obligation for the IAD:
[35] … By simply stating, “I find the cases cited not helpful as they
differ on facts” without any further analysis, it is contended that the IAD
offended the principle of stare decisis.
[36] This
argument is without merit. A stay is an extraordinary and
discretionary relief, and each case turns on its own facts. The IAD
applied the Ribic test; that the outcome is not what the Applicant had
hoped for does not amount to reviewable error. Seriousness of the offence
is not limited to the nature of the charges, but also includes other features
of the case. Moreover, it is only one of the factors to be taken into
account and weighed in all of the circumstances of the case. Finally, the
IAD did not have to proceed with a detailed analysis of the cases submitted by
the Applicant; the Member considered these cases and provided brief but
entirely adequate reasons to explain why it was not granting a stay despite
that jurisprudence.
[Emphasis added]
[55]
I
see no obligation here: in this matter, the IAD was in no way obliged to analyze
the decisions submitted by the applicant in detail, but it nonetheless did so
and provided a summary of its reasons for not following the jurisprudence. A
simple reading of the passage suffices to understand that it is not a
confirmation of an obligation for the decision-maker, but merely an attestation
of what was done by the decision-maker.
[56]
In
any event, an administrative decision-maker is presumed to have considered all
of the evidence that was before it (Florea v Canada (Minister of Employment
and Immigration),
[1993] FCJ No 598) and it is settled law that a decision-maker is not
required to refer to every piece of evidence that is contrary to its findings
(see Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425; Hassan v Canada (Minister of Employment and Immigration) (1992), 147 NR 317 (FCA)).
[57]
For these reasons, I am of the view
that there was nothing wrong with the IAD not referring to the jurisprudence
submitted by the applicant in its decision. The question does not warrant the
intervention of this Court.
[58]
The parties were invited to submit
a question for certification, but none was submitted.
ORDER
THE COURT ORDERS AND
ADJUDGES that the application for judicial review be dismissed. No question
is certified.
“Simon Noël”
Certified
true translation
Sebastian
Desbarats, Translator
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