Date: 20031015
Docket: IMM-5891-02
Ottawa, Ontario, this 15th day of October, 2003
Present: THE HONOURABLE MR. JUSTICE MICHAEL KELEN
BETWEEN:
JOSE LUIS EUGENIO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board ("IAD"), dated November 1, 2002, wherein the IAD dismissed the applicant's appeal from a deportation order, under subsection 70(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2 as amended (the "Act"), because he was a person described in subsection 27(1)(d) of the Act.
[2] This case involves a person who has been in Canada since infancy. Canadian law does not distinguish this type of situation from one where a person becomes landed as an adult or near adult, and then engages in criminal activity. The IAD has equitable jurisdiction pursuant to s. 70(1)(b) of the Act to hear the appeal "having regard to all the circumstances of the case." It is similar to, but not the same as, a humanitarian and compassionate consideration under s. 114(2) of the Act, as different criteria apply.
FACTS
[3] The applicant is a Portuguese citizen who came to Canada in 1972 when he was six months old. He is a permanent resident of Canada and not a citizen. All of his immediate family members are in Canada and he has no ties with Portugal.
[4] He was the subject of a report under subsection 27(1)(d) of the Act and ordered deported on September 19, 2001. From 1990 to 2001 the applicant was convicted of ten criminal offences including possession of property obtained by crime, dangerous operation of a motor vehicle, assault, uttering threats, sexual assault and being unlawfully in a dwelling house. His sentences ranged from fines to five days to six months.
[5] The victim of the recent offences of sexual assault, dangerous operation of a motor vehicle, and uttering threats is the applicant's former common-law spouse, with whom he has an eight year old daughter (at the time of the IAD hearing). The child's mother is the legal guardian, but the applicant shares the responsibilities of raising the child equally, and pays support. The removal order is based on the sexual assault and unlawful entry of the former spouse's dwelling, i.e. the domestic crimes.
[6] The background of the offences on which the order is based is as follows: following his conviction in 2001 of uttering threats against his former spouse, the applicant was subject to a court order not to attend at his former spouse's home. Despite this order the applicant broke into her residence in April, 2001 and sexually assaulted her. He explained his actions as a means to determine if his former spouse was having sexual relations with another man. The applicant then seized his former spouse's bank card and withdrew money from her account. The applicant went into hiding from the police for one week but eventually turned himself in, and ultimately entered a guilty plea.
THE IAD'S DECISION
[7] The IAD considered the following factors approved by the Supreme Court in Chieu v. Canada (M.C.I.), [2002] 1 S.C.R. 84:
(a) the seriousness of the offence leading to deportation;
(b) the possibility of rehabilitation;
(c) the impact of the crime on the victim;
(d) the remorsefulness of the appellant;
(e) the length of time spent in Canada and the degree to which the appellant is established here;
(f) the presence of family in Canada and the impact on it that deportation would cause;
(g) efforts of the appellant to establish himself or herself in Canada, including employment and education;
(h) support available to the appellant, not only within the family but within the community; and,
(i) potential hardship the appellant will face in the likely country of removal.
[8] On weighing these factors the IAD concluded that any reasons in favour of granting the appeal were outweighed by those against doing so. In particular the IAD found the following:
(i) that the crimes committed by the applicant were serious and a culmination of an escalation of violence by the appellant toward his former common-law spouse;
(ii) the applicant did not show genuine remorse for his crimes. In particular, he did not believe it was necessary to receive any counselling relating to his sexual assault;
(iii) the IAD placed little weight on letters of support from the victim of the crimes, since evidence of remorse and rehabilitation should arise independently from the applicant; and,
(iv) although the applicant had completed an anger management course the IAD was not satisfied that he had adopted a satisfactory technique to result in a less volatile approach to life.
THE ISSUES
[9] The only issue raised by the applicant is whether the IAD failed to consider the best interest of the applicant's daughter in rendering its decision.
THE RELEVANT LEGISLATION
[10] Subsections 70(1) and 74(2) of the Act provide:
| 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.
74. (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.
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70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants:
a) question de droit, de fait ou mixte; b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada.
74. (2) En cas de sursis d'exécution de la mesure de renvoi ou de renvoi conditionnel, l'appelant est autorisé à entrer ou à demeurer au Canada aux éventuelles conditions fixées par la section d'appel. Celle-ci réexamine le cas chaque fois qu'elle juge opportun de le faire. |
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[11] Subsection 27(1)(d) of the Act provides:
| 27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
[...]
(d) has been convicted of an offence under any Act of Parliament, [...], for which a term of imprisonment of more than six months has been, or five years or more may be, imposed;
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27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas :
[...]
d) a été déclaré coupable d'une infraction prévue par une loi fédérale, [...]: (i) soit pour laquelle une peine d'emprisonnement de plus de six mois a été imposée, (ii) soit qui peut être punissable d'un emprisonnement maximal égal ou supérieur à cinq ans; |
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STANDARD OF REVIEW
[12] The standard of review of the IAD's decision is one of correctness for a question of law, and reasonableness simpliciter for a question of mixed fact and law.
[13] In Chieu v. Canada (M.C.I.), [2002] 1 S.C.R. 84, the Supreme Court of Canada considered the standard of review applicable to IAD decisions in appeals under s. 70(1)(b) of the Act. At para. 24 the Court states:
Administrative bodies generally must be correct in determining the scope of their delegated mandate, given that they are entirely the creatures of statute. As Bastarache J. stated in Pushpanathan, at para. 28, "it is still appropriate and helpful to speak of 'jurisdictional questions' which must be answered correctly by the tribunal in order to be acting intra vires". While the I.A.D. has considerable expertise in determining the weight to be given to the factors it considers when exercising the discretionary jurisdiction conferred by s. 70(1)(b) of the Act, the scope [page101] of this discretionary jurisdiction itself is a legal issue ultimately to be supervised by the courts. [emphasis added]
[14] The issue before this Court is whether the IAD failed to consider the best interest of the applicant's child in exercising its discretion under s. 70(1)(b) of the Act. Such a failure would be an error of law, and as per Chieu, the standard of correctness will apply.
ANALYSIS
(a) Applicant's Position
[15] The applicant submits that the impact of his removal upon his young daughter was not considered by the IAD as required by Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, and Legault v. Canada (M.C.I.) (2002), 212 D.L.R. (4th) 139, reversing, 203 D.L.R. (4th) 450. The applicant further submits that the IAD's decision cannot be considered reasonable since it failed to consider a large amount of evidence (largely the testimony of family members) regarding the impact the applicant's removal would have on his daughter. The applicant contends that the IAD's decision cannot withstand a "somewhat probing examination" as prescribed by Hawthorne v. Canada, [2003] 2 F.C. 555.
(b) Respondent's Position
[16] The respondent submits that the IAD considered all of the relevant factors in deciding the appellant's case and that, since the IAD did not ignore any evidence, it is not the function of this Court to re-weigh the evidence. The respondent directs the Court to Cherrington v. Canada (M.C.I.), [1995] F.C.J. No. 578 at para. 13:
The applicant submits that either the Appeal Division did not take these factors into account or ignored the evidence. Having read the transcript of the hearing before the Appeal Division, I do not agree with the applicant's submissions. The factors asserted by the applicant were before the Appeal Division and, indeed, the applicant and a number of witnesses fleshed out a number of details. The applicant has not pointed me to anything that would indicate that the Appeal Division ignored evidence; indeed, the applicant seems to want this Court to re-weigh the evidence. The proper weight to be given to evidence is a matter for the Appeal Division and is not subject to review by this Court. In Hoang v. Canada (Minister of Employment and Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.), a case which also concerned the removal from Canada of a permanent resident because he had committed a serious crime, MacGuigan, J.A., affirmed that the weighing of evidence was in the purview of the tribunal.
(c) Best interest of the child
[17] A review of the IAD's reasons shows the following attempts by the Board to indicate that it addressed the best interest of the applicant's child:
At para. 8:
I have also been "alive, alert and sensitive" to the best interest of the appellant's daughter in accordance with the decision of the Supreme Court of Canada in Baker.
At para. 20:
The length of the appellant's residence in Canada which is a positive factor does not impose an absolute bar on his deportation. Neither does the presence in Canada of his daughter automatically result in the exercise of discretion in his favour. I have been "alive, alert, and sensitive" to the best interests of the appellant's daughter in accordance with the Supreme Court of Canada in Baker.
Finally at para. 21:
[...]Although I accept that the appellant, and in particular the appellant's mother and sister, have close ties with the child, I find that the principal caregiver for the daughter is her own mother, which is confirmed by the terms of the separation agreement. She is the primary source of physical, financial, and emotional support for the child.
[18] While this Court accepts that the decision of the Board is not to be read microscopically, see Jones v. Canada (M.C.I.), [1998] F.C.J. No. 157 at para. 14, the attempts of the Board in this case to turn its mind to the best interest of the child can neither be described as "well identified and defined", nor do they show an examination with a great deal of attention. The Federal Court of Appeal has made it clear in Legault and Hawthorne that the mere mention of children is not the equivalent of examining and weighing. In Legault at para. 13 Décary J.A. states:
Is the mere mention of the children sufficient to fulfil the requirements of Baker [supra]? [page148] Answer: No. The mere mention of the children is not sufficient. The interests of the children are a factor that must be examined with care and weighed with other factors. To mention is not to examine and weigh. [emphasis added].
[19] In Hawthorne at paras. 4 - 6 Décary J.A. states:
The "best interests of the child" are determined by considering the benefit to the child of the parent's non-removal from Canada as well as the hardship the child would suffer from either her parent's removal from Canada.
[...]
For all practical purposes, the officer's task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent.
And at para. 32 Evans J.A. states in his concurring reasons:
It was also common ground that an officer cannot demonstrate that she has been "alert, alive and sensitive" to the best interests of an affected child simply by stating in the reasons for decision that she has taken into account the interests of a child of an H & C applicant (Legault, at paragraph 12). Rather, the interests of the child must be "well identified and defined" (Legault, at paragraph 12) and "examined ... with a great deal of attention" (Legault, at paragraph 31). For, as the Supreme Court has made clear, the best interests of the child are "an important factor" and must be given "substantial weight" (Baker, at paragraph 75) in the exercise of discretion under subsection 114(2).
[20] The Court is cognizant of the direction from Hawthorne, which the respondent points out, that the Court is not to impose formal requirements as to the approach taken in assessing a child's interests, and that furthermore the best interest of the child is an important factor, but not a determinative one to be considered in removal cases. That was the conclusion I reached in Gallardo v. Canada (M.C.I.), [2003] F.C.J. No. 52, see paras. 22 - 24.
[21] The respondent points to a number of excerpts from the IAD's decision which supposedly make it clear that the IAD analysed the issue from the point of view of the applicant's daughter. The Court cannot agree since those references merely state that the IAD took the interests of the child into account, but there is not even a cursory mention of the hardship the child might face upon her father's removal. This is a reviewable error of law.
[22] In the Court's opinion the case at bar is unlike the situation in Melo v. Canada (M.C.I.), [1998] F.C.J. No. 1942 where Denault J. found at para. 10 that succinct reasons with respect to impact of deportation on children is not synonymous with the failure to consider the issue. The Court adopts the application of Legault and Hawthorne in recent decisions of this Court such as in Owusu v. Canada (M.C.I.), [2003] F.C.J. No. 139 at para. 23, where Gibson J. states at para 22 - 23:
I noted earlier that Justice Evans' reasons in Hawthorne were minority reasons. Justice Décary, for the majority, arrived at the same result as did Justice Evans but based on different grounds. I derive the following principles from his reasons: first, the Baker and Legault decisions cited earlier in these reasons stand for the proposition that the best interests of a child are an important factor that must be given substantial weight; second, an Immigration Officer who is considering the best interests of a child should not be required to adopt a "magic formula" to explain the reasons for his or her exercise of discretion because to do so would "...elevate form above substance."
[...]
Against the foregoing authorities and subjecting the decision of the Immigration Officer that is here under review to a "somewhat probing examination", I determine that decision to be unsustainable. I find no basis whatsoever upon which I could conclude that the Immigration Officer had been "alert, alive and sensitive" to the best interests of the applicant's children in Ghana. Those interests were not "well identified and defined" by the Immigration Officer. They were not "examined... with a great deal of attention". Indeed, they were not examined at all and no explanation was provided by the Immigration Officer as to why they were not.
Upon a somewhat probing examination of the decision, the Court finds the decision unreasonable because it does not adequately consider the best interests of the child. As this is a question of mixed fact and law, the decision is reviewable on the standard of reasonableness simpliciter, and is set aside on that basis.
[23] In considering the factors in this case, I note that the IAD did not consider its power under subsection 74(2) of the Act to stay the removal order on the condition that the applicant does not again commit any crime against his former spouse or anyone else, and if does, the stay is lifted, and the applicant can be deported immediately. The exercise of this power may have been appropriate in balancing the best interest of the child, and other factors favouring the applicant remaining in Canada, against the most important factor, which is whether the applicant is likely to re-offend. In addition, the IAD has the power under subsection 74(2) to review the case from time to time as it considers necessary.
[24] Neither counsel proposed a question for certification. The Court agrees that there is no question to be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, and the matter referred back to a different panel of the IAD for redetermination in accordance with these reasons.
"Michael A. Kelen"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5891-02
STYLE OF CAUSE: JOSE LUIS EUGENIO v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 9, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
DATED: OCTOBER 15, 2003
APPEARANCES:
MR. GREGORY J. WILLOUGHBY
FOR THE APPLICANT
MR. DAVID TYNDALE
FOR THE RESPONDENT
SOLICITORS OF RECORD:
McKenzie Lake Lawyers
300 Dundas West
London, Ontario N6B 1T6
Tel: 519-672-5666
Fax: 519-672-2674
FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20031015
Docket: IMM-5891-02
BETWEEN:
JOSE LUIS EUGENIO
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER