IMM‑7131‑05
2006 FC 1055
Leonid Ivanov (a.k.a. Leon Ivanov, Leon Id Ivanov, Leoniv Ivanow and Leorid Ivanov) (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Ivanov v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Kelen J.—Toronto, August 22; Ottawa, September 1, 2006.
Citizenship and Immigration — Immigration Practice — Judicial review of decision of Immigration Appeal Division (IAD) of Immigration and Refugee Board cancelling 2001 direction staying execution of applicant’s removal order, dismissing appeal under former Immigration Act, s. 74(3)(b)(i) (former Act) — Applicant, Georgian, arrived in Canada in 1976 as permanent resident — Minister issuing deportation order in 1999 on basis applicant person described in former Act, s. 27(1)(d) as convicted in Canada of offences punishment for which within s. 27(1)(d) requirements — In appeals under former Act, s. 74(2), (3), IAD must consider all circumstances of individual facing removal including factors identified in Ribic v. Canada (Minister of Employment and Immigration) determined in appeal under s. 70(1) — In present case, IAD having to consider applicant’s potential foreign hardship, even in absence of full evidence, submission on issue by applicant — IAD not properly considering in reasons applicant’s family in Canada, dislocation to family deportation would cause — Evidence established family members sick, dependent on applicant — IAD also not properly considering length of time applicant spent in Canada, degree to which established herein — Application allowed — Question certified.
This was an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (Board) cancelling its 2001 direction staying the execution of the applicant’s removal order and dismissing his appeal under subparagraph 74(3)(b)(i) of the former Immigration Act (former Act). The applicant, a Georgian, arrived in Canada in 1976 as a permanent resident. In 1999, the Minister issued a deportation order against him on the basis that he was a person described in paragraph 27(1)(d) of the former Act for having been convicted in Canada of a number of offences for which a term of imprisonment of more than six months has been or five years or more may be imposed. On appeal under section 70 of the former Act, the Immigration Appeal Division (IAD) of the Board granted a stay of removal for 4 years on 8 conditions, including keeping the peace and being of good behaviour. On application by the respondent, the Board reviewed the stay of removal under subsections 74(2) and (3) of the former Act and section 192 of the Immigration and Refugee Protection Act (IRPA) in January 2005 and concluded that it should not exercise its discretion to the benefit of the appellant. Although the appellant raised a number of issues of his own (i.e. whether the Board ignored evidence that was important, relevant and contradictory to the Board’s disposition; whether it breached its duty of fairness by failing to advise the applicant that the best interests of his child were part of the case to be met; and whether it failed to provide adequate reasons for its decision), the main issue was what factors the IAD must consider in reviewing an appeal under subsections 74(2) and (3) of the former Act and whether it had considered the factors relevant to the applicant.
Held, the application should be allowed.
Whereas the IAD is required to consider “all circumstances” in the case of an appeal under subsection 70(1) of the former Act from a removal order, Parliament did not reproduce this language in subsections 74(2) and (3) under which authority the IAD may cancel a stay of removal and allow or dismiss an appeal commenced under subsection 70(1). On an appeal under subsection 70(1), the IAD has broad discretion to allow permanent residents facing removal to remain in Canada and must consider factors set out by the IAD panel in Ribic v. Canada (Minister of Employment and Immigration), such as family in Canada and the dislocation to the family that deportation would cause, seriousness of the offence, degree to which the appellant is established in Canada, and the degree of hardship the appellant would face if returned to his country of nationality. However, with respect to subsections 74(2) and (3) of the former Act, case law has established that the IAD must still consider “all the circumstances” of the individual facing removal, which include the factors identified in the Ribic decision.
In the case at bar, the IAD did not have regard to all relevant Ribic factors raised in the applicant’s case. It did not consider the entirety of the applicant’s evidence supporting his case to remain in Canada, which includes potential foreign hardship he may endure if removed from Canada to Georgia. The IAD was obliged to consider potential foreign hardship as a relevant factor in its reasons for decision even in the absence of the applicant giving full evidence and making submissions on this issue. The applicant in fact testified before the IAD that he would endure hardship if removed to Georgia, leading to the conclusion that he had no connections to Georgia, no relatives, no friends and no means of supporting himself. The IAD also did not adequately consider in its reasons “the family in Canada and the dislocation to the family that deportation would cause”. There was evidence from both the applicant and the applicant’s mother that the deportation would cause the death of his elderly and terminally ill mother, elderly and sick father and sick and dying grandmother who were completely dependent on the applicant for extensive care and help. Also, the IAD did not properly consider the length of time the applicant spent in Canada and the degree to which he was established there, a factor it had to consider according to Ribic. Contrary to the Board’s finding, the applicant had much more than “some degree of establishment in Canada”.
The Board did not ignore evidence led by the applicant that was important, relevant and contradictory to the Board’s disposition, such as the evidence regarding the condition imposed that the applicant maintain full‑time employment and the condition of maintaining the peace. A tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown and need not mention each evidentiary minutiae in its reasons provided it considers the totality of evidence. However, a decision maker must refer to and distinguish important, relevant and contradictory evidence or the Court will assume such evidence was ignored.
The Board also did not breach its duty of fairness by failing to advise the applicant that the best interests of his child were part of the case to be met, depriving him of an adequate opportunity to respond. Based on the applicant’s testimony and the fact that he did not submit evidence as to the relevance of his child to his establishment in Canada, it was reasonable for the Board to infer that the appellant is not involved with the child and that the best interests of the child would not unduly be affected by the applicant’s departure.
Finally, the Board did not fail to provide adequate reasons for its decision. As a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. The decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. In this case, the Board gave adequate reasons which set out the basis on which it concluded the major issues relevant to its decision, such as the applicant’s rehabilitation and attitude, the extent of the applicant’s non‑compliance with the two conditions of the stay of removal allegedly breached and the danger he posed to the public.
The question as to whether the IAD must consider all of the relevant factors raised by the applicant’s evidence when the applicant has not presented these factors himself as a basis for staying the deportation order was certified.
statutes and regulations judicially
considered
Criminal Code, R.S.C., 1985, c. C‑46.
Highway Traffic Act, R.S.O. 1990, c. H.8.
Immigration Act, R.S.C., 1985, c. I‑2, ss. 27(1)(d) (as am. by S.C. 1992, c. 47, s. 78; c. 49, s. 16(E)), 70 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 65; 1995, c. 15, s. 13), 73 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 74 (as am. idem; S.C. 1992, c. 49, s. 67).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 68, 192, 197.
cases judicially considered
applied:
Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL).
considered:
Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; (2002), 208 D.L.R. (4th) 107; 37 Admin. L.R. (3d) 252; 18 Imm. L.R. (3d) 93; 280 N.R. 268; 2002 SCC 3; Beaumont v. Canada (Minister of Citizenship and Immigration) (2002), 25 Imm. L.R. (3d) 189; 2002 FCT 1261; Burgess v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1302 (T.D.) (QL); VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25; (2000), 193 D.L.R. (4th) 357; 26 Admin. L.R. (3d) 1; 261 N.R. 184 (C.A.).
referred to:
C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; (2003), 226 D.L.R. (4th) 193; 50 Admin. L.R. (3d) 1; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29; Martin v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 183 (F.C.T.D.); Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL); Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312; 20 Imm. L.R. (2d) 296 (F.C.T.D.); Cepeda‑Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.).
APPLICATION for judicial review of a decision ([2001] I.A.D.D. No. 1276 (QL)) of the Immigration Appeal Division of the Immigration and Refugee Board cancelling its 2001 direction staying the execution of the applicant’s removal order and dismissing his appeal under subparagraph 74(3)(b)(i) of the former Immigration Act. Application allowed.
appearances:
Jeinis S. Patel for applicant.
Lorne McClenaghan for respondent.
solicitors of record:
Ronald Poulton, Mamann & Associates, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
[1]Kelen J.: This is an application for judicial review of the decision dated November 10, 2005 of the Immigration Appeal Division of the Immigration and Refugee Board [the Board] which cancelled its 2001 direction staying the execution of the applicant’s removal order, and dismissed his appeal under subparagraph 74(3)(b)(i) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the now repealed Immigration Act, R.S.C., 1985, c. I‑2. The applicant has been a permanent resident of Canada for the past 30 years, and is now being deported to Georgia, his country of origin and nationality.
FACTS
[2]The applicant, a 46-year‑old male citizen of Georgia, arrived in Canada in 1976 as a permanent resident. On October 5, 1999, the Minister issued a deportation order against the applicant on the basis that he was a person described in paragraph 27(1)(d) [as am. by S.C. 1992, c. 47, s. 78; c. 49, s. 16(E)] of the former Immigration Act for having been convicted in Canada of an offence for which a term of imprisonment of more than six months has been, or five years or more may be, imposed. Inter alia, the applicant was convicted:
1. in 1987 for possession of a weapon, assault causing bodily harm, and obstruction of justice, for which he was sentenced to 15 months’ imprisonment and probation;
2. in February 1994 for extortion, mischief, and two counts of uttering threats, for which he was sentenced to concurrent 5-month terms of imprisonment and probation for 3 years; and
3. in September 1997 for trafficking in narcotics, and possession of proceeds of crime, for which he was sentenced to 30-day terms consecutive to the 5 months he was already serving.
Stay of removal
[3]The applicant appealed the removal order under section 70 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 65; 1995, c. 15, s. 13] of the Immigration Act to the Immigration Appeal Division (IAD) of the Board. At his appeal hearing on January 15, 2001 [[2001] I.A.D.D. No. 1276 (QL)], the applicant conceded that the deportation order was valid. However, on February 9, 2001, the Board granted the applicant a stay of removal for 4 years, on 8 conditions, that he:
i. report in person to an immigration officer every 6 months in Toronto;
ii. report in writing any change of address;
iii. report in writing any criminal convictions forthwith;
iv. make reasonable efforts to seek and maintain full‑time employment and report forthwith any change in employment;
v. not knowingly associate with individuals who have a criminal record or who are engaged in criminal activity;
vi. not own or possess offensive weapons or imitations thereof;
vii. refrain from the illegal use or sale of drugs; and
viii. keep the peace and be of good behaviour.
DECISION UNDER REVIEW
[4]On application by the respondent, the Board reviewed the stay of removal pursuant to subsections 74(2) [as am. by R.S.C., 1985 (4th supp.), c. 28, s. 18] and (3) of the Immigration Act and section 192 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) on January 15, 2005. At the hearing, the applicant admitted that he breached the stay condition requiring him to keep the peace and be of good behaviour, but submitted that:
1. he met the condition to make reasonable efforts to seek and maintain full‑time employment by caring for his parents and grandmother in their home; and
2. there existed sufficient humanitarian and compassion-ate considerations to warrant special relief.
[5]By decision dated November 10, 2005, pursuant to subparagraph 74(3)(b)(i) of the Immigration Act, the Board cancelled the stay of removal and dismissed the applicant’s appeal, concluding in its reasons [at paragraphs 15-16]:
. . . that this is not an appropriate case in which the Division’s discretion ought to be continued to the benefit of the appellant.
In coming to this decision the panel considered a number of factors that included, but were not limited to, the degree of establishment of the appellant in Canada; the appellant’s rehabilitation and attitude; the extent of his non‑compliance with the terms and conditions of the IAD stay; and the danger the appellant poses to the Canadian public.
ISSUES
[6]The issues raised by the applicant are:
1. Did the Board ignore evidence led by the applicant that was important, relevant and contradictory to the Board’s disposition?;
2. Did the Board breach its duty of fairness by failing to advise the applicant that the best interests of his child were part of the case to be met, depriving him of an adequate opportunity to respond?; and
3. Did the Board fail to provide adequate reasons for its decision?
STANDARD OF REVIEW
[7]The Court will review the Board’s findings of fact on a patently unreasonable standard. The question of procedural fairness is one the Court must decide as a matter of law on a correctness standard (see C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at paragraph 100). Accordingly, the Court will review the first issue on a standard of patent unreasonableness and will review the remaining issues on a correctness standard.
RELEVANT LEGISLATION
[8]The legislation relevant to this case is:
1. the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA); and
2. the Immigration Act, R.S.C., 1985, c. I‑2 (repealed by S.C. 2001, c. 27, s. 274).
The relevant excerpts of these statutes are reproduced following these reasons at Appendix “A”.
ANALYSIS
[9]Before the Court considers the three issues raised by the applicant, this analysis will set out the legal nature of a review by the Appeal Division of the terms of a stay of execution of a deportation order pursuant to subsections 74(2) and (3) of the former Immigration Act.
[10]Whereas the IAD is required to consider “all circumstances” in the case of an appeal under subsection 70(1) of the Immigration Act from a removal order, Parliament did not reproduce this language in subsections 74(2) and (3), under which authority the IAD may cancel a stay of removal and allow or dismiss an appeal commenced under subsection 70(1). Accordingly, the question is what factors must the IAD consider in reviewing an appeal under subsections 74(2) and (3), and did the IAD in this case consider the factors relevant to the applicant? The Court raises this question ex proprio motu (of its own initiative).
(a) Appeals under subsection 70(1) of the Immigration Act
[11]The Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 held that on an appeal to the IAD under subsection 70(1) of the Immigration Act from a removal order:
(i) the onus lies on the individual facing removal to establish the case for him or her to remain in Canada;
(ii) Parliament intended the IAD to have a broad discretion to allow permanent residents facing removal to remain in Canada if it would be equitable to do so;
(iii) the IAD is entitled to consider potential foreign hardship when exercising its discretionary jurisdiction under paragraph 70(1)(b), provided that the likely country of removal has been established by the individual being removed on a balance of probabilities; and
(iv) the factors set out by the IAD in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL) remain the proper ones to consider during an appeal under paragraph 70(1)(b).
These principles were set out by Iacobucci J., writing for the Supreme Court in Chieu, at paragraphs 57, 66, 90 and 91:
Second, in appeals under the I.A.D.’s discretionary jurisdiction, the onus has always been on the individual facing removal to establish why he or she should be allowed to remain in Canada. If the onus is not met, the default position is removal. Non‑citizens do not have a right to enter or remain in Canada: Chiarelli, supra, at p. 733, per Sopinka J. See also Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 189, per Wilson J.; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 834, per La Forest J.; and Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1070. In general, immigration is a privilege not a right, although refugees are protected by the guarantees provided by the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6, entered into force April 22, 1954, entered into force for Canada September 2, 1969 (the “1951 Geneva Convention”), and the Protocol relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967, entered into force in Canada June 4, 1969. As Martland J. stated for this Court in Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, at p. 380, a removal order “establishes that, in the absence of some special privilege existing, [an individual subject to a lawful removal order] has no right whatever to remain in Canada. [An individual appealing a lawful removal order] does not, therefore, attempt to assert a right, but, rather, attempts to obtain a discretionary privilege”.
. . .
Parliament intended the I.A.D. to have a broad discretion to allow permanent residents facing removal to remain in Canada if it would be equitable to do so. This is apparent from the open‑ended wording of s. 70(1)(b), which does not enumerate any specific factors to be considered by the I.A.D. when exercising its discretion under this provision. The ability to quash or stay removal orders based on ameliorating or compassionate factors was granted to the I.A.D. partially as a result of the removal of the domicile provisions from the Act in 1977. The object of s. 70(1)(b) is to give the I.A.D. the discretion to determine whether a permanent resident should be removed from Canada. This is, admittedly, an unusual provision in that it gives the I.A.D. considerable discretionary power in dealing with the removal of permanent residents. But granting this discretionary power was a decision of Parliament. If Parliament is now concerned that such a broad grant of administrative discretion has been made, it is open to Parliament to amend the legislation.
. . .
For these reasons, the I.A.D. is entitled to consider potential foreign hardship when exercising its discretionary jurisdiction under s. 70(1)(b) of the Act, provided that the likely country of removal has been established by the individual being removed on a balance of probabilities. The Minister should facilitate the determination of the likely country of removal before the I.A.D. whenever possible, as this improves the efficient functioning of the Act. The factors set out in Ribic, supra, remain the proper ones for the I.A.D. to consider during an appeal under s. 70(1)(b). On such an appeal, the onus is on the individual facing removal to establish exceptional reasons as to why they should be allowed to remain in Canada. As the I.A.B. stated in Grewal v. Canada (Minister of Employment and Immigration), [1989] I.A.D.D. No. 22 (QL), the making of such a discretionary decision involves “the exercising of a special or extraordinary power which must be applied objectively, dispassionately and in a bona fide manner after carefully considering relevant factors” (p. 2).
In the instant case, the I.A.D. did not determine whether the appellant had established a likely country of removal. The appeal is therefore allowed with costs.
(b) Review of appeals under subsections 74(2) and (3) of the Immigration Act
[12]While the Supreme Court in Chieu, above, did not state which factors the IAD must consider when vacating a stay of removal under subsections 74(2) and (3) of the Immigration Act, the jurisprudence from this Court establishes that the IAD must still consider “all the circumstances” of the individual facing removal (see Martin v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 183 (F.C.T.D.), at paragraph 18, per MacKay J.; Burgess v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1302 (T.D.) (QL), at paragraph 17, per Nadon J.; and more recently Beaumont v. Canada (Minister of Citizenship and Immigration) (2002), 25 Imm. L.R. (3d) 189 (F.C.T.D.), at paragraph 23, per Snider J.). In Beaumont, my colleague Madam Justice Snider stated at paragraphs 22‑23:
Both parties agreed that the IAD, in deciding whether to vacate a stay, should consider all of the circumstances of the case. As accepted by Nadon, J. in the Burgess decision:
The Appeal Division, correctly in my view, at pages 7 and 8 of its reasons, sets out the question for determination:
. . .What is before the panel is whether it should exercise its discretion under paragraph 74(3)(b) of the Act. All of the circumstances of the case includes the respondent’s initial situation, his new convictions and his situation since his stay.
The question is whether the IAD considered all of the circumstances.
[13]In Burgess, above, Mr. Justice Nadon held that “all of the circumstances” include the factors identified by the IAD panel in the Ribic decision, above. In Burgess, Nadon J. set out the Ribic factors at paragraph 16:
(1) the seriousness of the offence leading to the deportation order;
(2) the possibility of rehabilitation;
(3) the length of time spent in Canada and the degree to which the appellant is established here;
(4) the family in Canada and the dislocation to the family that deportation would cause;
(5) the support available to the appellant, not only within the family but also within the community;
(6) the degree of hardship that would be caused to the appellant by his return to his country of nationality.
(c) The IAD decision under review in the case at bar
[14]In the case at bar, the IAD did not have regard to all relevant Ribic factors raised in the applicant’s case. The IAD did not consider the entirety of the applicant’s evidence supporting his case to remain in Canada, which includes potential foreign hardship which he may endure if removed from Canada to Georgia, his country of nationality.
[15]The question in the case at bar is whether the IAD was obliged to consider the applicant’s potential foreign hardship, a Ribic factor, in the absence of the applicant giving full evidence and making submissions on this issue. The applicant testified before the IAD that he would endure hardship if removed to Georgia. The IAD had a duty to address potential foreign hardship as a relevant factor in its reasons for decision. Once again, the Court has raised this issue ex proprio motu, and invited the parties to make submissions on the issue of “foreign hardship”.
[16]The applicant testified at the hearing as follows (page 233 and following in the certified tribunal record):
COUNSEL: Let’s say, let’s say you get deported tomorrow. What happens to them?
APPELLANT: What happens to them? What happens to me?
COUNSEL: What I’m asking is what happens to them if you’re not here?
APPELLANT: They will die probably. Die and that’s it. Everything we ever worked for, everything my parents ever created, everything will go to nothing. Everything will be just a big loss, a big waste.
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.
In the Court’s reading of the transcript and understanding of the applicant, the applicant may have no connections to Georgia, no relatives, no friends, and no means of supporting himself. This should have been explored at the hearing. The degree of hardship that would be caused to the applicant by his deportation to Georgia is one of the six factors which the Appeal Division is obliged to consider. It was raised by the applicant in his evidence, but not presented as a factor by the applicant’s counsel. I do not think that this excuses the Appeal Division from considering this factor in its reasons, but I will certify a question on this subject.
[17]Another Ribic factor which the Appeal Division did not adequately consider in its reasons is “the family in Canada and the dislocation to the family that deportation would cause”. There was evidence from both the applicant and the applicant’s mother that the deportation would cause the death of his elderly and terminally ill mother, elderly and sick father, and sick and dying 97-year‑old grandmother. The Appeal Division stated at paragraph 33 of its reasons that moving the applicant from Canada would:
. . . wreak some emotional hardship on him and his mother, these considerations do not outweigh the many negative factors that are present.
With respect, the panel has understated this effect. These people are completely dependent on the applicant for grocery shopping, housecleaning and extensive care. He is the only able‑bodied person in the condominium. The evidence is that there is so much work in this home with these three elderly and sick people that no employed homecare provider would endure if their son, the applicant, did not perform most of the work in the home, in addition to his employment outside the home.
[18]Another Ribic factor which must be considered by the Appeal Division is the “length of time spent in Canada and the degree to which the applicant is established here”. The IAD held at paragraph 18:
. . . the panel finds the appellant to have some degree of establishment in Canada.
With respect, the applicant has more than “some degree of establishment in Canada”. Canada is the only country where the applicant is established. Accordingly, he has much more than “some degree of establishment in Canada”. He has not established himself anywhere else.
[19]The question of whether the IAD considered all relevant factors in its decision to cancel the stay is a question of law reviewable on a correctness standard (see the decision of Madam Justice Snider in Beaumont v. Canada (Minister of Citizenship and Immigration), at paragraphs 19 to 21).
[20]Since the Court has found that the IAD did not properly consider all relevant factors in its decision to cancel the stay, the Court will allow the judicial review and remit the matter to the IAD to be redetermined by a different panel. In weighing these factors, the IAD may, or may not, decide that these factors outweigh the factors which favour the cancellation of the stay.
[21]In the alternative, I will review the three issues raised by the applicant at the hearing. These issues are illustrative of the fact that this hearing focussed on the circumstances with respect to the breach of two of the conditions of the 2001 stay of the execution of the deportation order. The IAD, and the parties did not appreciate that all the circumstances regarding the applicant were factors which the Appeal Division must consider in this review.
Issue No. 1: Did the Board ignore evidence led by the applicant that was important, relevant and contradictory to the Board’s disposition?
[22]The applicant submits that the Board ignored the applicant’s oral evidence in respect of:
(a) the condition that he make reasonable efforts to maintain full‑time employment during the stay of removal period; and
(b) the reason for his custodial sentence on conviction of assaulting his mother.
The respondent submits, and the Court agrees, that the Board considered and weighed the applicant’s evidence before reasonably concluding that the applicant breached the conditions of his stay of removal.
[23]A tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL), at paragraph 1), and need not mention each evidentiary minutiae in its reasons, provided it considers the totality of evidence (Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)). However, a decision maker must refer to and distinguish important, relevant and contradictory evidence, or else the Court will assume such evidence was ignored (see Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D) and Cepeda‑Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.), at paragraph 17).
(a) Condition of reasonable efforts to maintain full‑time employment
[24]The Board did not ignore the applicant’s evidence that he believed his household duties caring for his parents and grandmother met the condition of making a reasonable effort to maintain full‑time employment. At paragraphs 12 to 25 of its reasons, the Board stated:
The appellant provided extensive testimony about his role in the family, which he said included virtually providing total care for his grandmother who is physically incapacitated and upkeep of the family’s home.
. . .
In coming to this decision the panel considered a number of factors that included, but were not limited to, the degree of establishment of the appellant in Canada; the appellant’s rehabilitation and attitude; the extent of his non‑compliance with the terms and conditions of the IAD stay; and the danger the appellant poses to the Canadian public.
. . .
As stated earlier, there was considerable testimony from both the appellant and his mother on his role in the household. The appellant testified that he assists in lifting his grandmother, grooms her, prepares her meals and feeds her. He also does her laundry, which he does twice a day. He takes care of his father and does household chores. He combs his mother’s hair and does other chores for her because in addition to being terminally ill, his mother has some paralysis on her left side and has difficulty lifting her left arm.
The appellant’s mother confirmed his testimony. She also testified to the difficulties the family has experienced [sic] obtaining and retaining nursing help. She claimed that it was for those reasons that the appellant’s presence in Canada and in the home is vital.
While the panel accepts that the testimony presented shows the appellant is instrumental in the care of his grandmother and of his parents, in balancing these against other relevant factors, the [panel] found that they do not outweigh the other relevant factors, in particular, the degree of remorse and rehabilitation of the appellant.
The appellant’s response to respondent’s counsel’s question as to why he did not find work outside the home was that he chose to stay home and take care of his parents and grandmother.
In response to his counsel, he was more forceful. He stated that he decided on his own not to work. When his counsel asked him about the term of his stay, the appellant stated flatly that he could not comply with the order, staying at home was what he was going to do and . . . that no one could force [sic] to do anything he did not want to. He flatly stated he could not be forced to work.
[25]After reviewing the record, I conclude that the Board did not misconstrue the evidence by mistaking the nature of the condition imposed to be maintaining employment instead of making reasonable efforts to seek and maintain employment. The Board stated at paragraph 24:
Given that maintaining full‑time employment was one of the conditions of his stay, the panel finds the appellant’s responses are clearly at odds with this condition of his stay. . . .
While the Board misstated the condition at paragraph 24 of its reasons, on a fair reading of the transcript of hearing it is clear to the Court that the Board knew that the condition in fact required the applicant to make reasonable efforts to seek and maintain full‑time employment. It was reasonably open to the Board to conclude that the applicant’s conduct and oral answers fell short of reasonable efforts and so breached the stay condition. The Board relied on evidence that the applicant’s mother could have and intends to seek help outside the family to assist her in her daily activities so that the applicant could become employed full‑time, which supports a line of reasoning that the applicant was available to work outside the home during the stay of removal period, but chose not to. As noted above, the applicant would still be required to assist in his family’s home care.
(b) Condition of maintaining the peace
[26]The applicant admitted at his appeal hearing that he breached his condition to keep the peace and be of good behaviour. Nevertheless, the Board weighed all the evidence and found that the applicant breached the condition because:
i. he was convicted of assault in June 2003 for pushing his mother; and
ii. he was convicted in the intervening period under several provisions of the Highway Traffic Act [R.S.O. 1990, c. H.8], under the Criminal Code [R.S.C., 1985, c. C-46] for failing to attend Court, and failing to tender an appropriate fare under by‑law No. 1 of the Toronto Transit Commission.
[27]The Board did not ignore the applicant’s evidence that his assault on his mother was “gentle”, or misconstrue his evidence that the prison term was the result of his lengthy criminal record rather than offence‑specific aggravating factors. At paragraph 25 of its reasons, the panel stated:
With respect of the conviction for assault on his mother, the panel finds that both the appellant and his mother attempted to minimise [sic] the circumstances of the assault. In her testimony, the appellant’s mother claimed she struck him and he then moved her, gently, aside. However, the fact is that the appellant was convicted of an assault upon her for which he served a custodial sentence of 14 days taking into account the three days of pre‑sentence custody. In light of the appellant’s conviction and sentence, the panel finds that there is valid reason to doubt and reject the testimony of the appellant and his mother, in this regard.
It was reasonably open to the Board to decide that the assault conviction during the stay of removal period breached the stay condition.
[28]The panel did not ignore the applicant’s evidence that his mother consented to his return home, and that his parole terms were amended to allow him to return to his parents’ residence. There was no documentary evidence before the Board that the Ontario Court of Justice varied its probation order. The onus to produce was on the applicant, and the Board reasonably concluded that a potential breach was probative of disrespect for Canadian authorities.
Issue No. 2: Did the Board breach its duty of fairness by failing to advise the applicant that the best interests of his child were part of the case to be met, depriving him of an adequate opportunity to respond?
[29]The best interest of the applicant’s child was not a central issue to the Board’s decision. In its reasons which spanned 9 pages and 35 paragraphs, the Board turned to the interests of the applicant’s child only at paragraph 34:
The panel notes that no evidence was led with respect to the appellant’s child and his role in that child’s life. The panel infers that the appellant is not involved with him or her. Therefore, the panel finds that the best interests of the appellant’s child would not be unduly affected by the appellant’s departure.
[30]The applicant submits that the Board breached its duty of fairness by not advising him that an adverse inference would be made unless he adduced more evidence relative to his child’s best interests. The applicant’s affidavit evidence is that he told the Board that he had a 6-year‑old child, Marissa. The applicant states that he was asked no further questions about his child, which is why he said nothing further. In the applicant’s view, he was denied an adequate opportunity to respond to the case against him. The Court does not agree.
[31]The Board concluded that the child’s best interests would not be unduly affected by the applicant’s removal from Canada. The applicant failed to tender evidence in respect of an issue he now states would be favourable to his appeal before the Board. The onus lies on the applicant to provide sufficient evidence in support of his appeal, and the Board has no duty to elicit evidence from the applicant which would favour his appeal. Indeed, the Board cannot be in a position to do so when it does not know the applicant’s evidence ahead of time. If the best interests of the applicant’s child do favour his appeal, he should have tendered such evidence at his hearing. The Board cannot be expected to give notice of an issue which it had no idea would be relevant.
[32]I therefore turn to the applicant’s actual evidence in respect of his child, which is at page 248 of the certified tribunal record:
MINISTER’S COUNSEL: You have no children, right?
APPELLANT: I have a child.
MINISTER’S COUNSEL: Do you?
APPELLANT: Yes.
MINISTER’S COUNSEL: I see.
APPELLANT: Of course I do.
MINISTER’S COUNSEL: With your girlfriend?
APPELLANT: Yeah.
PRESIDING MEMBER: Former girlfriend, not Geraldine Roper.
APPELLANT: Pardon me?
MINISTER’S COUNSEL: Pardon?
PRESIDING MEMBER: A former girlfriend.
APPELLANT: Yes. I understand your concern, sir, and I totally agree with you. I made a mistake and I’ll be paying for it.
At the hearing, the applicant’s counsel submitted to the Board, at page 275 of the tribunal record, that the applicant’s attachment in Canada was to his family, spelled out to be his parents and grandmother:
COUNSEL: […] There is no evidence that, in my submission, that—well, let me put it to you this way. The appellant’s attachment is primarily to his family, it’s primarily to his mother, his father, his grandmother. And they are all here. And he has been, in my submission, supportive of them. The appellant is well established in Canada.
[33]Based on the applicant’s description of his child as a “mistake” that he will be “paying for”, the fact that he does not include his daughter when speaking of his family, and the fact that the applicant led no evidence or submission as to the relevance of his child to his establishment in Canada, it was reasonable for the Board to infer that the appellant is not involved with the child and that the best interests of the child would not unduly be affected by the applicant’s departure.
Issue No. 3: Did the Board fail to provide adequate reasons for its decision?
[34]The applicant submits that the Board failed to provide sufficient reasons for its decision.
[35]The standard which describes sufficient reasons in a given case was articulated by Mr. Justice Sexton for the Federal Court of Appeal in VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A.), at paragraphs 21 and 22:
The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. In the words of my learned colleague Evans J.A., “[a]ny attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons.”
The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors. [Footnotes omitted.]
[36]In this case, the Board gave adequate reasons which set out the basis on which it concluded the following major issues relevant to its decision:
1. the applicant’s rehabilitation and attitude;
2. the extent of the applicant’s non‑compliance with the two conditions of the stay of removal which were allegedly breached; and
3. the danger the applicant poses to the Canadian public.
For each issue, the reasons show that the Board:
i. considered the parties’ evidence and submissions;
ii. stated how it made findings of fact and stated the principal evidence it relied on; and
iii. explained how it arrived at its conclusion, leaving the applicant without uncertainty as to why the Board concluded as it did.
However, as discussed above, there are three relevant Ribic factors which the Appeal Division either did not sufficiently consider, or if it did consider these factors, it failed to provide adequate reasons for its decision with respect to these factors.
CERTIFIED QUESTION
[37]After the hearing, the Court issued a direction to the parties seeking their submissions with respect to whether the Appeal Division had a duty to consider the issue of foreign hardship to the applicant, an issue not canvassed by the parties at the hearing or at the IAD, except for some limited evidence by the applicant on the issue. Counsel for the respondent submitted that the Appeal Division “had a duty to consider the hardship removal would cause to the applicant. The Minister of Citizenship and Immigration takes this to be not in dispute and not a serious question of general importance”. The Court does not agree. If the Appeal Division had a duty to consider the hardship removal would cause to the applicant, then the question is whether this factor should have been considered by the Appeal Division when the applicant did not raise this issue in its closing submissions, and only presented limited evidence on the subject.
[38]The Court considers that this case has raised a serious question of general importance which ought to be certified for an appeal, namely:
Is the Appeal Division 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?
CONCLUSION
[39]The IAD did not properly consider all of the relevant Ribic factors in its decision to cancel the stay. Since this is a question of law reviewable on a correctness standard, this application for judicial review is allowed, the IAD decision is set aside, and the matter remitted to the IAD for re‑determination by a differently constituted panel.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed, the decision of the IAD dated November 10, 2005 is set aside and the matter remitted to the IAD for re‑determination by a differently constituted panel; and
2. The following serious question of general importance is certified for an appeal:
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?
APPENDIX “A”
1. Immigration and Refugee Protection Act, S.C. 2001, c. 27
68. (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
(2) Where the Immigration Appeal Division stays the removal order
(a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary;
(b) all conditions imposed by the Immigration Division are cancelled;
(c) it may vary or cancel any non‑prescribed condition imposed under paragraph (a); and
(d) it may cancel the stay, on application or on its own initiative.
(3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division.
(4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.
. . .
PART 5
TRANSITIONAL PROVISIONS,
CONSEQUENTIAL AND RELATED AMENDMENTS,
COORDINATING AMENDMENTS,
REPEALS AND COMING INTO FORCE
. . .
192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.
. . .
197. Despite section 192, if an appellant who has been granted a stay under the former Act breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act.
2. Immigration Act, R.S.C., 1985, c. I‑2 (repealed by S.C. 2001, c. 27, s. 274)
70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
. . .
73. (1) The Appeal Division may dispose of an appeal made pursuant to section 70
(a) by allowing it;
(b) by dismissing it;
(c) in the case of an appeal made pursuant to paragraph 70(1)(b) or 70(3)(b) respecting a removal order, by directing that execution of the order be stayed; or
(d) in the case of an appeal made pursuant to paragraph 70(1)(b) or 70(3)(b) respecting a conditional removal order, by directing that execution of the order on its becoming effective be stayed.
. . .
74. (1) Where the Appeal Division allows an appeal made pursuant to section 70, it shall quash the removal order or conditional removal order that was made against the appellant and may
(a) make any other removal order or conditional removal order that should have been made; or
(b) in the case of an appellant other than a permanent resident, direct that the appellant be examined as a person seeking admission at a port of entry.
(2) Where the Appeal Division disposes of an appeal by directing that execution of a removal order or conditional removal order be stayed, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Appeal Division may determine and the Appeal Division shall review the case from time to time as it considers necessary or advisable.
(3) Where the Appeal Division has disposed of an appeal by directing that execution of a removal order or conditional removal order be stayed, the Appeal Division may, at any time,
(a) amend any terms and conditions imposed under subsection (2) or impose new terms and conditions; or
(b) cancel its direction staying the execution of the order and
(i) dismiss the appeal and direct that the order be executed as soon as reasonably practicable, or
(ii) allow the appeal and take any other action that it might have taken pursuant to subsection (1).