Docket: IMM-4612-16
Citation:
2017 FC 366
Ottawa, Ontario, April 13, 2017
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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ISMAIL
ABDIKADIR MUSE
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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.
Overview
[1]
The Applicant, Mr. Ismail Abdikadir Muse, is a
Convention refugee from Somalia who came to Canada with his mother in July 2000
when he was ten (10) years old. He has a long history of criminal convictions
which began in 2005 as a young offender, the most recent being in relation to
two (2) offences committed in January and February 2015. In 2008, the Applicant
was diagnosed with schizophrenia and continues to receive on-going care through
a Community Treatment Order. In addition to his medical issues, the Applicant has
addiction issues.
[2]
On September 12, 2011, a member of the
Immigration Division issued a deportation order against the Applicant on
grounds of serious criminality pursuant to paragraph 36(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], after the Applicant was
convicted of one count of breaking and entering a dwelling house on May 4, 2010
and one count of robbery on March 16, 2011. Both are indictable offences punishable
by a maximum term of imprisonment for life pursuant to paragraphs 344(1)(b),
348(1)(b) and 348(1)(d) of the Criminal Code.
[3]
The Applicant exercised his right to appeal the
deportation order before the Immigration Appeal Division [IAD]. The legal
validity of the removal order was not challenged. Instead, he sought special
relief from the removal order based on humanitarian and compassionate [H&C]
grounds pursuant to paragraph 67(1)(c) and subsection 68(1) of the IRPA.
The IAD dismissed the appeal on October 14, 2016, concluding that the Applicant
had not met his burden of persuading the IAD that he should not be removed from
Canada.
[4]
The Applicant seeks judicial review of the IAD’s
decision. The Applicant raises three (3) issues: (1) the IAD improperly
discounted the strong impact his girlfriend had on his prospects for
rehabilitation; (2) the IAD made a speculative finding unsupported by the
evidence; and, (3) the IAD made a determinative error of fact.
II.
Analysis
[5]
It is well-established that the decision of the
IAD to grant or to withhold relief based on H&C considerations is
discretionary and involves an assessment of facts or mixed fact and law. Its
findings are to be reviewed on the standard of reasonableness and are subject
to considerable deference by this Court (Canada (Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paras 52, 53 and 57 [Khosa]; Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]; Dunne v Canada
(Public Safety and Emergency Preparedness), 2014 FC 835 at para 2).
[6]
In reviewing a decision against the reasonableness
standard, the Court must consider the justification, transparency and
intelligibility of the decision-making process, and whether the decision falls
within a range of possible, acceptable outcomes which are defensible in light
of the facts and law (Khosa at para 59; Dunsmuir at para 47).
[7]
The Applicant submits that the IAD improperly
discounted the positive impact his girlfriend was having on his prospects for
rehabilitation. The Applicant argues that since they began dating in July 2015,
he has turned his life around. His girlfriend is responsible for making sure
that he attends all his appointments and for his participation and attendance
in a weekly program for persons with both mental and addiction issues, despite
a psychiatrist’s opinion in 2015 that the Applicant would be incapable of
attending such a program because of his illness. He has stopped taking drugs and
he has had no new criminal charges. The Applicant argues that the IAD’s reasons
do not refer to any of this evidence even though the Applicant’s girlfriend was
found to be credible and well-meaning.
[8]
The Court is not persuaded by the Applicant’s
argument.
[9]
The IAD found that while the Applicant’s
girlfriend sounded sincere in her concern for the Applicant, she would be no
more successful than the Applicant’s mother in preventing the Applicant from
committing further offences. The IAD observed that she appeared to be a
vulnerable young woman because of her own personal circumstances. The IAD also
noted that she did not appear to be very sophisticated as she did not know
where and on what continent the Applicant was born, nor that a deportation
order had been issued against him.
[10]
While the IAD’s choice of language in referring
to the Applicant’s girlfriend as “unsophisticated”
may have been insensitive, a review of her testimony supports the IAD’s findings
that she was uninformed of a number of crucial facts relating to the
Applicant’s personal situation and circumstances. For example, she did not know
the name of the Applicant’s doctor even though she testified that she
accompanied the Applicant to his appointments (p 972-974 of the Certified
Tribunal Record [CTR]), didn’t know if the Applicant had ever smoked crack
(p 974 of the CTR), when he came to Canada (p 975 of the CTR), where he was
born (p 980 of the CTR), his exact birthdate (p 978, 980 of the CTR), the
Applicant’s street name (p 987 of the CTR) or whether he had finished school (p
987 of the CTR). She testified that she knew he had some immigration conditions
to follow and that he was under a removal order from Canada but did not know
that he was under a deportation order (p 981-982 of the CTR).
[11]
The IAD’s finding that the Applicant’s
girlfriend would not be successful in preventing the Applicant from committing
further offences is also reasonable in light of the psychiatric reports on file
which demonstrate that his attendance at medical appointments did not
significantly improve after the Applicant met his girlfriend. This Court notes
that in his 2016 report, the Applicant’s psychiatrist mentioned that the
Applicant “often misses appointments” with him. He also stated that although the
Applicant comes “voluntarily” for his injections,
he is usually “off by a few days to a week”.
[12]
As this Court has stated on a number of
occasions, it is not the role of this Court to reweigh the evidence. The IAD
had the benefit of the testimony of the Applicant, his girlfriend and the
Applicant’s mother and it is presumed to have considered all the evidence on
the record. Its findings are both reasonable and supported by the record.
[13]
The Applicant further contends that the IAD made
a speculative finding that is unsupported by the evidence. In August 2015, the
Applicant was given a suspended sentence and placed on probation for eighteen
(18) months after being convicted of theft for stealing a watch from a jewelry
store in January 2015. The Applicant submits that when the IAD concluded that “certainly, the theft […] does not appear to have been
committed while the appellant was in a psychotic state” and that it was “obviously premeditated”, the IAD ignored the expert psychiatric
evidence on the record and cast itself as an expert on whether the Applicant
was in a psychotic state at the time he committed this crime.
[14]
The Court disagrees. The IAD’s comments regarding
the Applicant’s psychotic state when he stole the watch in January 2015 must be
read in their proper context. In discussing the likelihood of the Applicant
committing further offences, the IAD acknowledged that the Applicant’s criminal
behaviour is in part due to his mental illness. The IAD explicitly referred to
three (3) reports from the Applicant’s psychiatrist and provided a good
overview of the Applicant’s condition and problems. In referring to the 2014
report, the IAD noted that the Applicant’s psychiatrist mentioned that while the
Applicant’s illness and lack of treatment contributed to his offending, this was
not the only factor as the Applicant was likely robbing to support his drug
habit. The IAD further observed that one month after stealing the watch, the Applicant
was charged with possession of cocaine for the purpose of trafficking and
stated that the offence had also likely been committed to support the
Applicant’s drug habit.
[15]
Looking carefully at the record, the Court finds
that the IAD’s assertion regarding the Applicant’s mental state at the time he
committed the theft of the watch is reasonable. The 2015 and 2016 psychiatrist
reports both indicate that the Applicant’s mental state has remained fairly
stable since his release from the hospital in May 2014 and that while he has
had difficulty getting himself to scheduled appointments, he was generally
compliant with his medication. Moreover, the Applicant’s psychiatrist
explicitly indicated in his 2015 report that the Applicant’s outstanding drug
charges suggested that he was still using drugs and that this would provide
some explanation for the allegation of theft.
[16]
The last issue raised by the Applicant in his
written submissions relates to the existence of a curfew. He argues that the
IAD erred in stating that the Applicant “could not even
comply with a simple condition like respecting a curfew from 10:00 p.m. to 6:00
a.m.”. It was the Applicant’s contention that he was not under a curfew.
However, at the hearing, the Applicant conceded that the IAD was likely
referring to a past curfew imposed on the Applicant as a result of his earlier
convictions, as it appears in a 2012 police narrative found in the record, and
which the Applicant had breached.
[17]
Overall, the Court finds that it was open to the
IAD, in the exercise of its discretion, to conclude that the Applicant had not
demonstrated sufficient H&C considerations to warrant special relief (Chung
v Canada (Citizenship and Immigration), 2017 FCA 68 at para 27). The IAD’s
conclusion was reasonable and its decision falls within the range of possible,
acceptable outcomes which are defensible in light of the facts and law (Khosa
at para 59; Dunsmuir at para 47).
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