PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Ramanan Rajagopal (the applicant) seeks judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the “IAD”) dated July 6, 2006 which dismissed an appeal of his deportation order on humanitarian and compassionate
("H & C") grounds under paragraph 67(1)(c) and subsection 68(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[2] The applicant is a 29 year old citizen of Sri Lanka who came to Canada on May 30, 1999. He was determined to be a Convention refugee but did not acquire Canadian permanent resident status.
[3] On October 27, 2003 the applicant was convicted of sexual assault, contrary to subsection 271(1) of the Criminal Code, in relation to an incident that occurred on May 25, 2001. The applicant received a suspended sentence, 18 months probation and a discretionary firearm prohibition order for five years. The applicant also has a minor related conviction from 2003 for breach of a recognizance related to being in an area where he was prohibited to be while on bail.
[4] The applicant was ordered deported from Canada because he was found to be a person whom there are reasonable grounds to believe is a foreign national who is inadmissible on grounds of serious criminality under paragraph 36(1)(a) of the Act. The applicant does not challenge the legal validity of the deportation order.
[5] The applicant was ordered removed from Canada in March of 2005; he filed an appeal with the IAD in April of 2005. On July 4, 2005 counsel for the Minister filed written submissions with the IAD and recommended that the applicant’s removal order be stayed for 4 years with conditions. A member of the IAD denied the Minister’s request for a stay and the appeal was sent to the IAD panel which heard the appeal. The applicant and his wife appeared as witnesses at the appeal hearing on May 10, 2006.
[6] On July 6, 2006, the IAD dismissed the appeal on the grounds that the case did not merit special relief under subsections 67(1) or 68(1) of the Act. Leave for judicial review was granted on February 16, 2007.
DECISION
[7] In reaching this conclusion, the IAD recognized that the onus is on the applicant to show why he should not be removed from Canada. The IAD also outlined a list of non-exhaustive factors (hereafter the “Ribic factors”) set out by the Court in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL) and confirmed in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at para. 40, that should be considered when the IAD exercises its discretionary jurisdiction in removal order appeals. These factors are:
a) the seriousness of the offence or offences leading to the removal order;
b) the possibility of rehabilitation, or , alternatively, the circumstances surrounding the failure to meet the conditions of admission;
c) the length of time spent, and the degree to which the appellant is established in Canada;
d) the family in Canada and the dislocation to the family that removal would cause;
e) the family and community support available to the appellant, and
f) the degree of hardship that would be caused to the appellant by the appellant’s return to his or her country of nationality.
[8] The IAD also recognized that the weight given to the factors can vary depending on the circumstances of the case. The IAD stated that it had taken all of these things into account, in addition to the testimony and documentary evidence presented, and the submissions of the parties in determining the present appeal. The IAD focused in particular however on the second factor: rehabilitation.
[9] In setting out its reasons, the IAD referred to the police occurrence report (hereafter “police report”) that contained the allegations of sexual assault against the applicant. The police report indicated that the accused had boarded a bus at the same station as the victim of the sexual assault, and then got off at the same stop. He then exposed himself to her, grabbed her arm and pushed her, trying to get her to go behind a plaza. He kept asking her to perform oral sex, and attempted to prevent her from leaving. He eventually followed her home only to be chased away by the victim’s father.
[10] The IAD noted that the applicant had testified to a very different version of events. The applicant stated that the victim had approached him as a sex trade worker offering sex for cash, that he only touched her after she took his money, and that she then reneged on the sex. The IAD concluded however that as “the appellant had pled guilty to the charge as described in the report” it preferred the report’s description of events over the testimony of the applicant as to the truth of what happened, on a balance of probabilities. The IAD further noted that the panel could not go behind the conviction. The IAD concluded that the criminality at issue in the case was serious.
[11] The IAD stated that it also placed “little weigh on the testimony and evidence of the appellant’s wife” regarding the applicant’s rehabilitation, her support and the support of her family, in light of the short duration of their relationship and in light of the fact that it had found that the applicant had told her the same story that the IAD had found to be false.
[12] For essentially the same reason the IAD went on to state that it had placed little weight on the documentary evidence of the applicant’s sister, the Tamil Eelam Society of Canada, and the applicant’s “temple” that spoke to the applicant’s rehabilitation and community support. The IAD noted that the authors of these documents were not called as witnesses, and in light of the untrue story told by the applicant to his wife, the IAD felt it had good reason to believe that the same story had been told to these individuals as well. Therefore it had good reason not to place weight on their evidence in the absence of their testimony.
[13] The IAD went on to confirm that it had taken into consideration the fact that the applicant only had one serious conviction and that several years had passed without the commission of another offence. However “given his refusal to admit the truth of the sexual assault, and in light of all the above” the IAD found that the applicant was not remorseful and therefore remained at risk of re-offending, noting that it was also not persuaded that he had reliable family or community support in Canada.
[14] The IAD further indicated that the applicant was not established in Canada. It highlighted that since his arrival the applicant had not become a permanent resident, he had been on social assistance, and his work history which was not steady had not been established by evidence. The IAD went on to note that there was also no evidence that the best interests of a child would be directly affected by the decision, and though the applicant was a Convention refugee, as a likely country of removal had not been established, foreign hardship was also not at issue.
[15] The IAD concluded that all of the above weighed in the negative with respect to the H & C balance. The IAD found only two positive H & C factors favoured the applicant’s case. It accepted that the applicant’s wife and her family, and the applicant’s family in Canada would suffer emotional hardship if he was removed, and that the applicant would suffer the same if separated from them. However the IAD found that it would be unlikely that the applicant’s wife would feel that she was being forced to leave Canada as a result of its decision. The IAD concluded as a result that the H & C balance tipped negative. The IAD further found that as the overall H & C balance weighed “so negative” it did not merit the granting of a stay, which is “special relief”. As a result “special relief” was not granted under subsections 67(1) or 68(1) of the Act.
ISSUES:
[16] The applicant has raised the following issues in the present case:
1. Did the IAD fail to properly consider the factor of rehabilitation in the circumstances of this case?
2. Did the IAD err by not granting a stay?
3. Did the IAD ignore or misconstrue evidence properly before it, and/or make improper inferences in light of its treatment of the police report?
STATUTORY FRAMEWORK:
[17] Subsections 67(1) and 68(1) of the Act provide as follows:
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67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, (a) the decision appealed is wrong in law or fact or mixed law and fact; (b) a principle of natural justice has not been observed; or (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
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67. (1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé : a) la décision attaquée est erronée en droit, en fait ou en droit et en fait; b) il y a eu manquement à un principe de justice naturelle; c) sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales.
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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.
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68. (1) Il est sursis à la mesure de renvoi sur preuve qu’il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales.
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ANALYSIS
Standard of Review
[18] As asserted by the respondent, there are a number of recent cases that have utilized the patently unreasonable standard in assessing the IAD’s discretion under subsections 67(1) and 68(1) of the Act. For example, as was asserted in Nguyen v. Canada (Minister of Citizenship and Immigration), 2006 FC 979:
32 The Federal Court has stated that the statutory discretion of the Immigration Appeal Division under subsections 67(1) and 68(1) of IRPA is broad, and that a court will not interfere with the exercise of discretion provided that the discretion has been exercised in good faith and has not been influenced by extraneous or irrelevant considerations (see Mand v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 016, 2005 FC 1637 at paragraph 13). In Capra v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1605, 2005 FC 1324 at paragraph 6, Justice Blais held that in cases such as these, the standard of review is patent unreasonableness. Similarly, Justice Russell in Canada (Minister of Citizenship and Immigration) v. Bryan, [2006] F.C.J. No. 190, 2006 FC 146 at paragraph 43 held that the standard of patent unreasonableness is the appropriate standard of review for the Immigration Appeal Division's exercise of discretion under subsection 68(1) of IRPA. I agree with this finding. I will therefore apply the standard of patent unreasonableness to the decision under review.
[19] That being said, recently, Décary J.A. speaking for the majority of the Federal Court of Appeal in Khosa v. Canada (Minister of Citizenship and Immigration), 2007 FCA 24 at para. 12 [Khosa] found that the appropriate standard of review to apply when the Ribic factors are considered is reasonableness, “essentially because the decision is not protected by a full privative clause, is not a polycentric one, relates to human interests and does not, in so far as the possibility of rehabilitation factor is concerned, engage the Board's expertise”. Desjardins J.A. offered a strong dissent on this point, however, arguing that considering the expertise of the IAD, the nature of the question, and the wide discretion granted by the legislation to the IAD, that the standard of patent unreasonableness should apply: Khosa, above at para. 40. Leave to appeal has been filed with the Supreme Court of Canada with respect to this case.
[20] In light of the deference I owe to the Court of Appeal, I will apply the standard of reasonableness in the present case.
1. Assessment of the Rehabilitation Factor
[21] The applicant argues that the IAD has erred in failing to consider important factors in assessing the applicant’s rehabilitation, and that it has therefore rendered an unreasonable decision.
[22] The applicant asserts that the IAD should have specifically considered the fact that the applicant was given a suspended sentence; that more weight should have been given to the fact that he only had one serious conviction and that it had occurred five years before the hearing; and that the applicant testified to being remorseful, being determined to change his life, and that his marriage was an important and positive factor. The applicant asserts that the IAD also failed to consider evidence that the applicant was undergoing active counseling related to the criminal conviction; that the applicant had renewed his interest in God; and was engaged in religious and volunteer activities.
[23] In addition, the applicant asserts that the IAD erred in dismissing the testimony of his wife in part because of the short duration of their relationship. The IAD also erred in dismissing her testimony on the basis of its findings regarding the truth of the factual basis with respect to the sexual assault. As opposed to merely finding that she had not been told the truth, and that because she did not alter her testimony as to the applicant’s rehabilitation when confronted with the truth during cross examination, her testimony was “unlikely, self-serving, and/or naïve”, the IAD should have taken into consideration the context and totality of her evidence. The IAD should have considered the fact that the applicant’s wife had a credible background, clearly knew the applicant well, remained committed to making a positive difference in the applicant’s life, and was consistent in her assertions that he had been rehabilitated.
[24] The applicant further argues that the IAD erred in dismissing the documentary evidence submitted by the applicant’s sister, the applicant’s temple, and the Tamil Eelam Society that supported his claims of rehabilitation, community and family support. The sole basis for rejecting this evidence was the IAD’s assumption that as it had found that the applicant had told his wife the same story it had been found to be untrue, these individuals were likely also told the same story. In the absence of their testimony, the IAD therefore had good reason not to place much weight on the documentary evidence. According to the applicant, this line of reasoning makes it clear that nothing short of the applicant admitting the content of the police report could have made a difference. The IAD, essentially, became fixated on the applicant’s refusal to accept the content of the police report as correct, to the exclusion of all other evidence indicating rehabilitation.
[25] The respondent asserts that the IAD’s findings were open to it on the evidence before it, and that it took into consideration all the necessary factors in the circumstances of the case.
[26] In Khosa, Décary J.A., speaking for the majority of the Court of Appeal stated the following with respect to how a Board should assess rehabilitation:
11. In cases where…a Board may question a finding of rehabilitation made by a provincial criminal court, the Board should, at a minimum, take into consideration the factors generally associated with the criminal law concept of rehabilitation. In the case at bar this would include the absence of a criminal record (other than the one at issue), the absence of previous convictions for dangerous driving, the response to community supervision and the recent history of the offender, including the upgrading of his education and his work record. …
[emphasis mine].
[27] Many of these factors were in fact considered by the IAD in the present case. For example, with respect to work history, the IAD recognized in its reasons though not necessarily in the specific context of discussing rehabilitation, that the accused had been on welfare during his time spent in Canada, that his work history was sporadic, and was not established on the evidence, In assessing rehabilitation in particular, the IAD also specifically took into consideration the fact that the applicant had had only one conviction and that several years had passed without the commission of another offence. The IAD also stated that it took into consideration the testimony of the applicant’s wife, and the documentary evidence provided by the applicant’s sister, the Tamil Eelam Society of Canada, and the applicant’s temple, with respect to his rehabilitation and community support. The IAD determined however that little weight was to be accorded to this evidence, in light of its findings regarding the truth of the factual basis of the sexual assault and the fact that the applicant had not been honest to these individuals about it.
[28] Generally speaking the applicant’s argument can be characterized as taking issue with how the IAD assigned weight and assessed the various pieces of evidence before it. Considering the fact that the testimony given by the applicant and his wife was at best confusing as to what exactly transpired with respect to the events leading to his criminal conviction, it was open to the IAD to make a finding with respect to what it thought had occurred, and what it thought the applicant’s wife had actually been told. It was also open to the IAD to take this particular finding into account when assessing the weight to be given to the other documentary evidence before it.
[29] That being said, though the conclusions of the IAD were open to it, in light of the emphasis placed by the IAD on what it saw as the truth of the events underlying the criminal offence in assessing and weighing all of the evidence, the reasonableness of its analysis turns on whether its underlying assessment in this regard can be said to have been properly made. As seen below, the application is successful on this ground.
2. Assessment of Whether to Grant a Stay
[31] The applicant asserts that in the present case the IAD has failed to provide any meaningful analysis or reasons for its refusal to grant a stay, the extent of its attention being limited to a sweeping conclusion. As was noted in Archibald v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 747 (T.D.)(QL) at paragraph 11: “a significant factor in assessing whether or not to stay the deportation order is an evaluation of the risk which exists that the applicant will re-offend”. In the present case, the applicant asserts that the IAD’s sole finding in this regard was based on its further finding that the applicant was not remorseful, which was in turn was based on the misconstrued nature of the police report. Therefore the IAD failed to consider all of the evidence which indicated that the applicant would likely not re-offend.
[32] The respondent asserts that the IAD did not err in refusing to grant a stay, and that it gave clear reasons for the refusal. The respondent asserts that the case law indicates that the applicant is entitled to know why the IAD denied a stay but that it does not support the assertion that the IAD must issue additional or special reasons in this regard.
[33] In dealing with the issue of whether or not to grant a stay, the IAD stated that “[s]tays of deportation are, by their very nature, special relief. However, as I have found the overall humanitarian and compassionate balance to weigh so negative as not to merit special relief. Special relief is therefore not warranted. It is therefore not appropriate for me to grant a stay”. The IAD went on to note “[f]or all these reasons, I find that the case does not merit special relief under sections 67(1)(c) or 68(1)” of the Act.
[34] It is clear that the IAD’s analysis as a whole was meant to apply to its decisions with respect to both paragraph 67(1)(c) and subsection 68(1) of the Act. The IAD therefore did not merely state a conclusion with respect to the stay issue.
[35] That being said, because the IAD’s decision clearly rests on the totality of its analysis, the same issue highlighted in issue 1 applies: the reasonableness of the IAD’s conclusion with respect to whether or not it should grant a stay ultimately turns on the third issue raised by the applicant in this case, which I have discussed below.
3. Assessment of the Police Report
[36] As was highlighted by the Court in Balathavarajan v. Canada (Minister of Citizenship and Immigration), 2006 FCA 340 at para. 12:
12 Section 175 of the IRPA permits the IAD to receive and base a decision on evidence adduced in immigration proceedings that it considers to be credible and trustworthy in the circumstances. The evidence can sometime be tenuous and may include evidence of informants: Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 523 (T.D.), at para. 107; aff'd, [2004] 3 F.C.R. 572 (C.A.). It is up to the IAD, not the Court to decide the weight to be given to the evidence.
[emphasis mine]
[37] Further, in Huang v. Canada (Minister of Citizenship and Immigration), [1992] F.C.J. No. 472 (C.A.)(QL) the Court found that the then Appeal Division of the Immigration and Refugee Board had not committed a reviewable error in receiving and relying on evidence that could be described as “double hearsay”. The Court found that the Board was “entitled to hear and act on it if it found it be relevant, credible and trustworthy”.
[38] The Court has also accepted that the IAD has a wide ambit to determine underlying facts to an offence, even to the extent that it can find that an applicant is innocent in the face of a guilty plea: Canada (Minister of Citizenship and Immigration) v. Hua, 2001 FCT 722 at para. 34.
[39] Clearly it is open to the IAD to determine the weight to be given to evidence before it, and to rely on that evidence it if is found to be relevant, credible and trustworthy. It was also certainly open to the IAD to reject the applicant’s explanation of the facts underlying his offence in favor of those found in the police report.
[40] That being said, the applicant in the present case is arguing that the IAD erred because it mischaracterized the evidence, by proceeding on the incorrect assumption that the report set out the facts on which the plea was based. In support of this contention, the applicant points to the fact that after describing the applicant’s version of events the IAD went on to state: “[h]owever, as the appellant pled guilty to the charge as described in the report, I find that I prefer the above over the testimony of the appellant and that it is the truth as to what happened, on a balance of probabilities” [emphasis mine]. The IAD further stated that it could not go behind the conviction.
[41] At first glance, it is not clear whether the IAD’s statement emphasized above is a finding of fact or an assumption that the plea of guilty must necessarily correspond to the facts as alleged in the police report.
[42] To meet the reasonable standard the reasons of the IAD as a whole must withstand a somewhat probing examination. As I have noted above however, the reasonableness of the IAD’s decision relies so heavily on this one finding, the reasonableness of the decision really turns on this one underlying point.
[43] When this particular statement is examined, it appears that the emphasized portion is the rationale for why the IAD determined that it preferred the reports content over the testimony of the applicant. Though it would have been open to the IAD to make this finding, it is inappropriate for it to have been assumed. This is a mischaracterization of the nature of the police report. The report contains allegations as the officer recorded them upon investigating the complaint, not the findings of fact reached by the court that convicted the applicant and imposed sentence. Though the IAD could have referred to evidence or testimony to support an argument that on a balance of probabilities the police report likely characterized the underlying facts of the offence in an accurate manner, the IAD did not do so. It is not open to the Court to revisit or re-weigh the evidence in order to substantiate the findings of the IAD.
[44] As was noted in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247:
55 A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
56 This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision….
[emphasis mine]
[45] This standard has not been met in the present case. The IAD’s finding with respect to the nature of the police report informed the rest of its analysis to such an extent that it cannot be said that any line of analysis remains to support its conclusion when this error is removed.
[46] In the result, the application for judicial review is accepted. The decision of the IAD is quashed and will be sent back for re-consideration by another panel.
[47] No serious questions of general importance were proposed and none will be certified.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application is granted and the matter shall be remitted to the Immigration Appeal Division for re-consideration by a differently constituted panel. No questions are certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4173-06
STYLE OF CAUSE: RAMANAN RAJAGOPAL
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: MOSLEY J.
APPEARANCES:
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Krissina Kostadinov
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Matina Karvellas
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SOLICITORS OF RECORD:
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KRISSINA KOSTADINOV Waldman & Associates Barristers & Solicitors Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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