Date: 19980515
Docket: IMM-2793-97
BETWEEN:
RADESH BIKHARI
Applicant
- AND -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.:
[1] The applicant seeks to set aside a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "Appeal Division") rendered on June 6, 1997 by presiding member Paule Champoux. By her decision, Ms Champoux refused to stay or set aside a deportation order rendered against the applicant.
[2] The relevant facts can be briefly summarized as follows. The applicant arrived in Canada in July 1987 and became a permanent resident of this country. He is 28 years old and is a citizen of Guyana. From December 1991 to September 1996, the applicant was convicted of a number of serious offences including driving a motor vehicle under the influence of alcohol, possession of a prohibited weapon, aggravated assault and possession of property obtained by crime. Further, the applicant was the object of two police reports in 1995 concerning incidents of violence against his common law spouse and mistress respectively. It was also in evidence that the applicant has a total of four children with these two women and that the mothers and the children are Canadian citizens.
[3] On August 14, 1996 adjudicator Pierre Turmel, pursuant to subsection 32(2) of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act"), made a deportation order against the applicant. The adjudicator found that the applicant was a person described in subparagraph 27(1)(b )(ii) of the Act in that he was a person who had been convicted in Canada of offences under an Act of Parliament for which a term of imprisonment of more than five years could have been imposed.
[4] At the hearing before adjudicator Turmel on August 14, 1996, the applicant, through his counsel, admitted the information which appeared on reports issued pursuant to section 27 of the Act filed in evidence as exhibits C-2 and C-4, i.e. that he had been convicted of an offence under an Act of Parliament for which a term of imprisonment of five years of more could have been imposed. Specifically, exhibit C-4 shows that the applicant was convicted in Montreal on February 22, 1995 for possession of property obtained by crime, an indictable offence described in sections 354 and 355(A) of the Criminal Code and liable to imprisonment for a term not exceeding ten years.
[5] The applicant appealed adjudicator Turmel"s decision pursuant to paragraph 70(1)(b ) of the Act which reads as follows:
| 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, |
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: |
| ... |
... |
| (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada. |
[6] The hearing before panel member Champoux took place on May 30, 1997. On June 6, 1997 Ms Champoux made the following order:
THE APPEAL DIVISION ORDERS that the appeal be dismissed. The removal order made the 14th day of August 1996 is in accordance with the law, and the appellant has failed to show that, having regard to all circumstances of the case, the appellant should not be removed from Canada.
[7] Before the Appeal Division, the applicant testified with respect to his criminal convictions and the incidents of violence against his common law spouse and against his mistress which were the object of the two police reports in 1995. The applicant testified that he deeply regretted his criminal conduct and that he had seen the error of his ways. He further testified that he had a serious alcohol problem between 1988 and 1996 such that whenever he drank he became violent. He stated that he had stopped drinking except for a few beers during the weekends. The applicant has not undertaken any therapy because he believes that he has now cured himself. Evidence was also led by the applicant to demonstrate that he provided financial support for his children. As I indicated to counsel during the hearing, I was somewhat surprised by that evidence since the applicant, for the relevant years, declared a taxable income of less than $2,000.00.
[8] Counsel for the applicant argued that she could not accept the fact that the Appeal Division would not quash or stay the deportation order rendered against her client. Because her client stated before the Appeal Division that he no longer had an alcohol problem and thus would not commit any crimes in the future, counsel for the applicant seems to be under the impression that the matter ends there and that the evidence somehow answers the problems her client faces by virtue of 27(1)(b)(ii) of the Act. With respect to his common law wife and mistress and his children counsel pointed me to the evidence before the Appeal Division that the applicant gave $100.00 a week to each woman for the care of the children. Counsel argued that it was, without doubt, in the best interest of Canadian society to keep her client in Canada in order that he would continue making child support payments. Counsel also reminded me that it was also in evidence before the Appeal Division that most of the applicant"s family lived in Canada and that it was not in anyone"s interest to separate the applicant from his children.
[9] Unfortunately for the applicant, the Appeal Division concluded that, having regard to all of the circumstances of the case, the deportation order should not be set aside nor stayed. The applicant challenges that decision but, in my view, he has not demonstrated that the Appeal Division made any error, whether of fact or of law, which would allow me to intervene. In Canepa v. M.E.I., [1992] 3 F.C. 270, the Federal Court of Appeal had occasion to explain the meaning of the phrase "having regard to all the circumstances of the case", which appear in paragraph 70(1)(b ) of the Act. At 285 and 286 MacGuigan J.A. offers the following explanation:
The second objection had to do with the Board"s statement that "in these cases the Board is required to carefully weigh the interests of Canadian society against the interests of the individual." This, it is submitted, is a different test from that mandated by statute, viz., whether "having regard to all the circumstances of the case, the person should not be removed from Canada."
I cannot accept that the phrase "having regard to all the circumstances of the case" means that a tribunal should, to make such a judgment, abstract the appellant from the society in which he lives. The statutory language does not refer only to the circumstances of the person , but rather to the circumstances of the case. That must surely be taken to include the person in his total context, and to bring into play the good of society as well as that of the individual person. I cannot accept that the social considerations had been taken account of once and for all by the order of deportation itself. In my view paragraph 70(1)(b) of the Act requires that they be considered again, but this time along with every extenuating circumstance that can be adduced in favour of the deportee.
[10] Thus, the Appeal Division, in deciding whether to set aside or stay the deportation order, had to consider both the interest of Canadian society and the interest of the applicant. Panel member Champoux, in concluding against the applicant, did not give any reasons. Furthermore, the applicant, who was represented by counsel both before adjudicator Turmel and the Appeal Division, did not request reasons as he had a right to do under subsection 69.4(5) of the Act.
[11] The question to be decided herein is whether the Appeal Division, in exercising its statutory discretion under paragraph 70(1)(b) of the Act, made a reviewable error? The test by which the exercise of a statutory discretion must be measured was clearly stated by the Supreme Court of Canada in Boulis v. M.E.I., [1974] S.C.R. 875. At 877 Abbott J. stated the test as follows:
| In my opinion however, such an appeal can succeed only if it be shown that the Board (a) has refused to exercise its jurisdiction or (b) failed to exercise the discretion given under s. 15 in accordance with well established legal principles. As to those principles, Lord Macmillan speaking for the Judicial Committee said in D.R. Fraser and Co. Ltd. v. Minister of National Revenue, at p. 36: |
The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.
At 882 Laskin J. explained the test as follows:
...On this view, the question that remains in this case is whether the Board erred in its assessment of the evidence either by misstating or misunderstanding it or ignoring relevant portions thereof, to such a degree as to make its conclusion one that is not supportable on the evidence. I do not think that this Court"s appellate jurisdiction in relation to a decision of the Board under s. 15(1)(b )(i) should be extended to the point of interference with the weight assigned by the Board to evidence where, either taken by itself or in relation to conflicting or modifying evidence, the Board must decide on its force in meeting the standards fixed by s. 15(1)(b)(i).
[12] I have carefully reviewed the evidence put forward by the applicant before the Appeal Division but, notwithstanding the very able arguments made by Ms Rochester on behalf of the applicant, I have not been persuaded that the Appeal Division made any error which would allow me to intervene. On the evidence before her, I am of the view that Ms Champoux"s conclusion is not one that can be qualified as unreasonable. Perhaps Ms Champoux could have taken a different view of the evidence so as to conclude in favour of the applicant but I am satisfied that allowing the appeal was not the only conclusion open to her. Ms Champoux"s decision that the deportation order should neither be stayed nor set aside is, in my view, clearly supported by the evidence. In the end, Ms Champoux had to weigh the evidence before her and to decide, bearing in mind the interest of Canada and those of the applicant, whether the deportation order should either be set aside or stayed. Ms Champoux was of the view that the deportation order should be executed and, as I have already said, that view was clearly open to her. There is also no evidence that Ms Champoux decided the applicant"s appeal other than in good faith, nor is there any evidence to show that she was influenced by irrelevant considerations.
[13] The foundation of Ms Rochester"s submissions was that her client, in the future, would behave properly in that he would not commit any crimes, he would not be violent towards his common law spouse and/or mistress and that he would continue to provide financial support for his children. Considering the applicant"s history between 1991 and 1996, and the evidence led before the Appeal Division, it is not obvious to me that the applicant has or will change his behaviour. Perhaps, as Ms Rochester suggests, he will. On the other hand, the Crown, represented by Ms Bernard, was of a different view. We are in the realm of human behaviour and thus, there are no certainties one way or the other. That is why, in my view, Ms Champoux could decide as she did the applicant"s appeal.
[14] For these reasons, this application for judicial review will be dismissed.
"MARC NADON"
Judge
Ottawa, Ontario
May 15, 1998