Docket: IMM-1759-16
Citation:
2017 FC 80
Toronto, Ontario, January 23, 2017
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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ZAVION FORDE
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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
I.
Overview
[1]
Mr Zavion Forde arrived in Canada from Jamaica
in 2000 when he was 14. He was subsequently convicted of a sexual offence and
ordered deported. However, Mr Forde’s deportation was stayed in 2010 for a
period of 5 years. He was later convicted of further offences, and the stay of
his deportation was cancelled.
[2]
Mr Forde appealed the removal order to the
Immigration Appeal Division. After a hearing, the IAD dismissed his appeal. Mr
Forde seeks to quash the IAD’s decision arguing that he was treated unfairly
and that the IAD did not take adequate account of the best interests of his
children. He also contends that the IAD applied the wrong test and failed to
evaluate the risks he would face if he returned to Jamaica.
[3]
Mr Forde also argues that he is entitled to a
new hearing because of a gap in the transcript of the proceedings before the
IAD. The gap relates to about one hour of Mr Forde’s examination-in-chief. He
maintains that the absence of a full transcript impairs his ability to
challenge the IAD’s adverse credibility findings against him.
[4]
I can find no basis on which to overturn the
IAD’s decision or order a new hearing. Having reviewed the entire record, I am
satisfied that Mr Forde was treated fairly and that the IAD gave sufficient consideration
to the best interests of his children. In addition, the gap in the transcript
has not interfered with Mr Forde’s ability to challenge the IAD’s decision on
this judicial review. Accordingly, I must dismiss this application for judicial
review.
[5]
There are five issues:
1.
Did the IAD treat Mr Forde unfairly?
2.
Did the IAD apply the wrong test?
3.
Did the IAD give adequate consideration to the
best interests of Mr Forde’s children?
4.
Did the IAD fail to consider the risks to Mr
Forde in Jamaica?
5.
Did the gap in the transcript impede Mr Forde’s
ability to seek judicial review of the IAD’s decision?
II.
Issue One – Did the IAD treat Mr Forde unfairly?
[6]
Mr Forde maintains that the IAD breached an
undertaking to consider evidence that he offered to provide after the hearing.
[7]
The record does not bear out Mr Forde’s
position.
[8]
At the end of the hearing, Mr Forde’s counsel
asked for an opportunity to provide proof that Mr Forde had completed a Partner
Assault Response Program (PARS). While the IAD was concerned that the evidence
had not already been provided and that there would be no opportunity for
cross-examination, it nevertheless agreed that the document could be attached
to counsel’s forthcoming written submissions.
[9]
In fact, counsel sent additional documents to
the IAD after the hearing. Mr Forde contends that the IAD made a general
commitment to consider additional evidence, not just his PARS document, so it
should have evaluated that other evidence. The record clearly shows that the
IAD agreed, reluctantly, to receive evidence about the PARS program. There is
no support for Mr Forde’s contention that the IAD promised to consider any
further evidence that he might wish to provide.
III.
Issue Two – Did the IAD apply the wrong test?
[10]
Mr Forde argues that the IAD erred by approaching
his hearing as if it was a fresh assessment of the factors that could justify a
stay of removal. Rather, he says, the IAD should have accepted that the
original stay was justified and merely considered whether there was new
evidence showing that the stay should be cancelled.
[11]
I disagree.
[12]
The IAD properly considered all of the relevant
evidence in deciding whether another stay of removal was justified. The burden
fell on Mr Forde to persuade the IAD that a further stay should be imposed, and
he failed to do so.
IV.
Issue Three – Did the IAD give adequate
consideration to the best interests of Mr Forde’s children?
[13]
Mr Forde submits that the IAD gave only cursory
attention to the interests of his children and also arrived at an unreasonable
conclusion that their interests would not be seriously affected if he returned
to Jamaica.
[14]
In my view, the IAD adequately assessed the best
interests of Mr Forde’s children.
[15]
The IAD considered the amount of time Mr Forde
spends with his children and how much financial support he is able to provide.
It noted the inconsistencies in Mr Forde’s testimony in these areas. It also
observed that, in light of his criminal record, Mr Forde may not represent a
good role model for his children.
[16]
The IAD’s analysis and conclusions were not unreasonable
on the evidence before it.
V.
Issue Four – Did the IAD fail to consider the
risks to Mr Forde in Jamaica?
[17]
Mr Forde argues that the IAD failed to respond
to his testimony in which he expressed his fear of harm or death in Jamaica.
[18]
I disagree.
[19]
Mr Forde presented little evidence about
conditions in Jamaica. The IAD specifically commented on the fact that Mr Forde
had not addressed this issue in any serious way. The IAD was bound to respond
meaningfully to the evidence before it. However, when little evidence is
supplied, the IAD cannot be faulted for providing only a brief analysis.
VI.
Issue Five – Did the gap in the transcript
impede Mr Forde’s ability to seek judicial review of the IAD’s decision?
[20]
The existence of a gap in the record does not
amount to a breach of procedural fairness on its own. The question is whether
the applicant’s ability to challenge the decision-maker’s findings has been
compromised (Agbon v Canada (Minister of Citizenship and Immigration),
2004 FC 356 at para 3).
[21]
In some cases, for example, a gap in the record
can be filled by way of an affidavit from the applicant or another person. In
others, the passage of time or uncertainty about the content of the missing
testimony will make an affidavit an inadequate substitute for the transcript.
[22]
Here, the gap appears to be about an hour in
duration. The transcript shows that the IAD took a short break after which the
hearing abruptly ended. It is likely that the recording equipment was not
restarted after the break. What is missing, therefore, is roughly an hour of Mr
Forde’s testimony-in-chief. When the hearing resumed some months later, Mr
Forde was cross-examined by counsel for the Minister. Mr Forde’s father then
testified. Rather than making oral submissions at the end of the hearing, counsel
agreed to provide the IAD with written submissions.
[23]
Mr Forde contends that the missing testimony related
to humanitarian and compassionate factors that might have justified allowing
him to remain in Canada. The IAD ruled against him, finding that his testimony
was vague in places and untruthful in others. He maintains that he cannot
realistically challenge those findings given the gap in the transcript.
[24]
As for a substituting affidavit, Mr Forde cannot
recall what questions he was asked in chief or how he answered them.
[25]
As mentioned, Mr Forde was permitted to make
written submissions after the hearing. In those submissions, he made reference
to the most favourable testimony before the IAD in arguing that he should be
entitled to a further stay of his removal. I see no reference in those
submissions to any testimony that might have appeared in the missing
transcript. Nor is there any specific reference in the IAD’s reasons to any
testimony that might have been given while the recording equipment was turned
off.
[26]
In the circumstances, therefore, a new hearing
is not required.
VII.
Conclusion and Disposition
[27]
The IAD treated Mr Forde fairly and rendered
reasonable conclusions on the evidence before it. Further, in the circumstances
of this case, the lack of a full transcript did not prevent Mr Forde from challenging
the adverse credibility findings made against him. A new hearing is not required.
The application for judicial review is dismissed. Neither party proposed a
question of general importance for me to certify, and none is stated.
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