Date: 20001117
Docket: A-450-99
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
NOËL J.A.
BETWEEN:
SATHIYASEELAN NAGULARAJAH
Appellant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Thursday, November 16, 2000)
NOËL J.A.
[1] This is an appeal from a judgment of Sharlow J. (then sitting in the Trial Division) dismissing the appellant's application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board1. The Appeal Division had dismissed the appellant's appeal of a deportation order.
[2] Sharlow J. upon dismissing the judicial review application certified the following question:
| 1. Did the Appeal Division of the Immigration and Refugee Board exceed its jurisdiction when it considered public safety in the appeal of a deportation order under paragraph 70(3)(b) of the Immigration Act? |
[3] The appellant contends that in answering this question in the negative, Sharlow J. misconstrued paragraph 70(3)(b) of the Immigration Act (R.S.C. 1985, c. I-2, as amended).
[4] The relevant facts are clearly set out in the decision of Sharlow J. and as these are not in dispute, we need not restate them.
[5] In support of his appeal, the appellant refers to the difference in wording between paragraph 70(1)(b) which provides for an appeal "having regard to all the circumstances of the case", and paragraph 70(3)(b) which provides for an appeal based on "compassionate or humanitarian considerations":
| 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) ... (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
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) ... b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada. |
| 2) Subject to subsections (3) to (5), an appeal lies to the Appeal Division from a removal order or conditional removal order made against a person who (a) has been determined under this Act or the regulations to be a Convention refugee but is not a permanent resident; or (b) ... |
2) Sous réserve des paragraphes (3) à (5), peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel : a) les non-résidents permanents qui se sont vu reconnaître le statut de réfugié au sens de la Convention aux termes de la présente loi ou de ses règlements; b) ... |
| 3) An appeal to the Appeal Division under subsection (2) may be based on either or both of the following grounds: (a) ... (b) on the ground that, having regard to the existence of compassionate or humanitarian considerations, the person should not be removed from Canada. |
(3) Les moyens que peuvent invoquer les appelants visés au paragraphe (2) sont les suivants : a) ... b) le fait que, pour des raisons d'ordre humanitaire, ils ne devraient pas être renvoyés du Canada. |
| [Our Emphasis] |
Pointing to this difference, the appellant contends that paragraph 70(3)(b) contrary to paragraph 70(1)(b) must be construed as excluding from its ambit considerations such as public safety. The appellant adds that this interpretation is bolstered by subsection 70(5) which provides for the issuance of a danger to the public opinion where the Minister considers that public safety is threatened. The appellant concludes that since no such opinion was issued in this case, the Appeal Division exceeded its jurisdiction when it considered the issue of public safety.
[6] We are satisfied that Sharlow J. came to the correct conclusion essentially for the reasons that she gave. The argument based on the difference in the wording of paragraphs 70(1)(b) and 70(3)(b) is of no assistance to the appellant. Paragraph 70(1)(b) provides for the benefit of permanent residents broader grounds of appeal "having regard to all the circumstances of the case". Convention refugees are limited by paragraph 70(3)(b) to "compassionate or humanitarian considerations".
[7] In determining whether there are humanitarian and compassionate grounds by virtue of which the applicant should not be removed from Canada, it was open to the Appeal Division to take into account any fact that is relevant to this assessment. This Court has already decided in Barrera v. Canada 18 Imm. L.R. (2d) 81, that the Appeal Division may consider the seriousness of past criminal offences in making this assessment. As Sharlow J. stated at paragraph 17 of her reasons:
| Evidence of criminal history would be pointless in a paragraph 70(3)(b) appeal without evidence that would assist in assessing rehabilitation and the likelihood of future criminal behaviour. Therefore, evidence of rehabilitation and future prospects must be relevant in such an appeal. But it is not meaningful to weigh such evidence without taking into account the potential seriousness and impact of future criminal behaviour. That necessarily includes an assessment of the risk to the public. To put it another way, any realistic assessment of a person's criminal history must take into account the question of how the risk of future criminal activity might affect the public. |
We agree and conclude that the Appeal Division did not exceed its jurisdiction when it took into account public safety.
[8] Subsection 70(5) is of no more assistance to the appellant. Its purpose is to accelerate the removal from Canada of persons, who in the opinion of the Minister constitute a danger to the public, by taking away their right of appeal. It cannot be seriously argued that the limitation of the right of appeal in these circumstances evidences a legislative intent to disregard public safety as a relevant consideration under other provisions of the Act. The only consequence which flows from the fact that such an opinion was not issued in this case is that the appellant retained his right of appeal.
[9] Finally, the appellant goes beyond the certified question and argues that the Appeal Division misconstrued the evidence before it regarding the appellant's risk of re-offending. He submits that Sharlow J. erred in not so finding.
[10] We disagree. It is apparent from the decision of the Appeal Division that it considered all the factors connected with the rehabilitation of the appellant both favourable and unfavourable. While the appellant disagrees with the conclusion reached by the Appeal Division, he has been unable to show that this conclusion is unreasonable let alone patently unreasonable.
[11] The certified question will therefore be answered in the negative and the appeal will be dismissed. As no costs were sought, none will be awarded.
"Marc Noël"
J.A.
__________________1Reported: Nagularajah v. Canada (Minister of Citizenship and Immigration) (1999) 171 F.T.R. 125.