Date: 20071003
Docket: A-409-06
Citation: 2007 FCA 315
CORAM: NADON
J.A.
SEXTON
J.A.
SHARLOW
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
LEONID IVANOV
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
[1]
This
appeal considers whether the Federal Court correctly determined that the
Immigration and Refugee Board, Immigration Appeal Division (the “IAD”) is
obliged to consider all of the relevant factors raised by the applicant’s
evidence even if the applicant has neither referred to nor relied on these
factors in his submissions as a basis for staying a deportation order. I would
conclude that the IAD does have such a duty and I would dismiss the appeal.
[2]
This
is an appeal of the decision of Justice Kelen of the Federal Court in Leonid
Ivanov v. Minister of Citizenship and Immigration, 2006 FC 1055. In the
Court below, Leonid Ivanov (the “respondent”) successfully obtained judicial
review of a decision of the IAD in which the IAD cancelled its 2001 direction
staying the execution of the respondent’s removal order and dismissed his
appeal under subparagraph 74(3)(b)(i) of the now repealed Immigration
Act, R.S.C. 1985, c. I-2 (the “former Act”). Justice Kelen also certified
the following serious question of general importance:
Is the
Immigration Appeal Division of the Immigration and Refugee Board obliged to
consider all of the relevant factors raised by the applicant’s evidence when
the applicant has not presented these factors in his submissions as a basis for
staying the deportation order?
[3]
Where
a permanent resident seeks a stay of a deportation order pursuant to s. 70(1)(b)
of the former Act, the IAD must have “regard to all the circumstances of the
case” in deciding that the claimant should not be removed from Canada. The Supreme
Court of Canada, in Chieu v. Canada (Minister of Citizenship and
Immigration) [2002] 1 S.C.R. 84, confirmed that the circumstances to be
considered are those sometimes referred to as the “Ribic factors”, after
the IAD decision of Ribic v. Canada (Minister of
Employment and Immigration), [1985] 1 I.A.B.D. No. 4 (QL). The Ribic
factors are as follows:
·
the
seriousness of the offence or offences leading to the deportation and the
possibility of rehabilitation;
·
the
circumstances surrounding the failure to meet the conditions of admission which
led to the deportation order;
·
the
length of time spent in Canada and the degree to which the applicant is
established;
·
the
existence of family in Canada and the dislocation to that family that
deportation of the applicant would cause;
·
the
support available for the applicant not only within the family but also within
the community; and
·
the
degree of hardship that would be caused to the applicant by his return to his
country of nationality (this factor is sometimes referred to as “foreign
hardship”).
The Ribic factors are illustrative
of the circumstances the IAD should consider when hearing appeals under subparagraph
70(1)(b), but the factors are not exhaustive: Chieu, supra.,
at paragraph 40.
[4]
The
Supreme Court in Chieu also clarified that the IAD is entitled to
consider potential foreign hardship under s. 70(1)(b) of the former Act,
if, as in this case, a likely country of removal is identified by the permanent
resident facing removal. Since the Supreme Court’s reasons in Chieu were
not released until 2002, in the 2001 hearing originally granting a stay to the
respondent the IAD did not address the issue of foreign hardship and, under the
then current jurisprudence, was not obliged to do so. However, the IAD
decision that is the subject of this appeal was rendered after Chieu.
[5]
A
preliminary question this Court must answer is whether the Ribic factors
apply to the cancellation of a stay pursuant to subparagraph 74(3)(b) of
the former Act, which makes no reference to an obligation to consider “all the
circumstances of the case.” It appears to me that established IAD and Federal
Court practice answers this question in the affirmative. See, for instance, Beaumont
v. Canada (Minister of
Citizenship and Immigration) (2002) 25 Imm. L.R. (3d) 189 (F.C.T.D.)
and Burgess v. Canada (Minister of
Citizenship and Immigration) [1998] F.C.J. No. 1302 (F.C.T.D.) per Nadon J.
(as he then was) at paragraphs 16 to 19. I see no reason to
disturb the practices of the IAD and the Federal Court in this regard.
[6]
I
now turn to the certified question, namely, whether the IAD is obligated to
consider evidence that applies to Ribic factors not argued in the
claimant’s submissions. The appellant makes reference to two cases of this
Court: Owusu v. Canada (M.C.I.) [2004] 2 F.C. 635, 2004 FCA 38, and Ranganathan
v. Canada (M.C.I.) [2001] 2 F.C. 164 (C.A.). Neither case is apposite to
this appeal.
[7]
The
case of Owusu considered the failure of an immigration officer to
consider the claimant’s argument that if he were forced to return to Ghana he would not
have any way to support his family financially. However, in that case, there
was no evidence presented to support this submission. In that sense, the issue
in Owusu is opposite from the case at bar: this case deals with
evidence, but no submissions. In Owusu, there was a legal submission
with no supporting evidence.
[8]
The
appellant also makes reference to the case of Ranganathan, supra.,
for the proposition that the respondent could not have possibly thought that
foreign hardship was an important factor if it had not been presented to the
IAD as such in his submissions. Thus, so the logic goes, the IAD would not have
had to consider this factor. However, the case of Ranganathan concerned
the availability of an internal flight alternative (“IFA”) in Colombo in a refugee
claim. The question was not whether the Convention Refugee Determination
Division had considered a specific factor, but rather whether they had
considered a specific piece of evidence in relation to the question of IFA.
More importantly, there were established facts that directly contradicted the
evidence that had been omitted from the Board’s decision.
[9]
In
my opinion, once there is evidence that relates to a Ribic factor, the
IAD must consider that Ribic factor in its reasons. This is not
tantamount to an obligation to elicit evidence, as the appellant suggests. The
evidentiary burden to demonstrate why a stay ought not to be cancelled remains
on the permanent resident facing deportation.
[10]
Applying
that reasoning to the case at bar, the IAD failed to consider the factor of
foreign hardship. Moreover, while it was scant, some evidence had been
presented on this issue. The relevant evidence reads (the emphasis is my own):
COUNSEL: Okay. Look, I understand that. But I’m more
interested in the more immediate aftermath. Okay? What I want to know is, you
get deported, what happens to provisions of the daily care of your mother and
grandmother?
APPELLANT: There’s going to be no care. They’re
probably going to end up dying and that’s it. There’s going to be nothing
there. And to be quite honest, you know, you guys decide to deport me, why
don’t you just – you know, I don’t even want to live. I don’t really want to
think about that. You know - - -
COUNSEL: Why not?
APPELLANT: 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.
[11]
The
failure to consider the Ribic factor of foreign hardship is an error of
law. Thus, the decision of the IAD dated November 10, 2005 must be set aside.
The matter must be remitted to the IAD for redetermination by a differently
constituted panel. I will not address the other grounds of appeal as it is not
necessary to do so.
[12]
I
would answer the certified question in the affirmative and dismiss the appeal.
“J. Edgar Sexton”
“I
agree
M.
Nadon”
“I
agree
K.
Sharlow”
Email this Content