This is a strange decision by the IAD. If its reasoning would be correct, then it would mean that EVERY appeal should be successful, no matter how serious the crimes, how many, or how blatant, and there would be no incentive for a convicted person to make a genuine effort to show progress and reform. This is contrary to the spirit of the legislation: the purpose of consideration by the IAD on humanitarian and compassionate grounds is to reward positive conduct by an individual who has made an error, usually a small one, and to grant mercy on a conditional basis to that person, it is not to allow serial criminals to remain in Canada just because they were granted refugee status, or they are busy defying court orders, or the like. Although consideration of the "best interests of the child" is required by law, it does not automatically result in a positive decision. In this case, it appears that the person concerned showed a pattern of conduct inconsistent with the protection of the public goals stated by the IRPA. Being granted refugee status should not be construed as a free pass to commit crimes in the country which has granted refuge. That seems offensive to the common person.
Hurtado Ortiz v. Canada (Minister of Public Safety andEmergency Preparedness)
Josue Arnulfo Hurtado Ortiz, appellant, and
Minister of Public Safety and Emergency Preparedness,respondent
[2009] I.A.D.D. No. 1714
[2009] D.S.A.I. no 1714
No. MA8-15314 Immigration and Refugee Board of Canada
Immigration Appeal Division
Montreal, QuebecPanel: Mariam S. PalHeard: July 21, 2009.Decision: August 14, 2009.
(13 paras.)
Removal Order Appeal
Reasons for Decision
1 These are the reasons for the decision in the appeal of Josue Arnulfo HURTADO ORTIZ (the Appellant) who was ordered deported on October 23, 2008 on the grounds that the Appellant had been convicted of an offence for which a term of imprisonment of more than six months was imposed or ten years or more may have been imposed. Consequently he was determined to be a person described in section 36(1)(a) of the Immigration and Refugee Protection Act (IRPA)1.
ISSUE
2 There was no challenge to the legal validity of the Appellant's deportation order and, based on the evidence before it, the Panel is satisfied that the deportation order is valid in law. The issue before the Panel is whether there are sufficient humanitarian and compassionate factors, in all the circumstances of the case, taking into consideration the best interests of any children directly affected by the decision, to either allow the Appellant's appeal outright, dismiss the appeal, or to stay the deportation order.
DECISION
3 The Panel heard oral testimony from the Appellant. The Panel's decision is to stay the deportation order for two (2) years for the following reasons.
BACKGROUND
4 The Appellant is a 51-year-old protected person residing in Canada and is a citizen of Mexico. He arrived in Canada on September 18, 2003 and claimed refugee status. He was granted refugee status on March 17, 2004. The Appellant is married and has four children. His family is in Canada. The Appellant's children are aged 16, 14, 6 and 3. The two older children were born in Mexico and the two younger children were born in Canada. Since his arrival in Canada, the Appellant has been employed at a series of short-term jobs. He has a law degree from Mexico.
ANALYSIS
5 The Panel's analysis is guided by the factors first outlined in the Ribic2 case and endorsed in the Supreme Court of Canada decisions in Chieu3 and Al Sagban4. The Panel is of the opinion that these factors, while not exhaustive, are helpful in considering whether to exercise its authority to grant special relief under sections 67 or 68 of IRPA. These factors are:
- The seriousness of the offence or offences leading to the deportation
- The possibility of rehabilitation
- The length of time the Appellant has been in Canada and the degree to which the appellant is established
- The impact the Appellant's removal from Canada would have on members of the Appellant's family
- Family in Canada and the dislocation to that family that deportation of the appellant would cause
- The support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return.
6 These factors are not exhaustive and the weight to be given to each of them may vary depending on the circumstances of the case.
Seriousness of the Offences
7 The Appellant's crimes are serious. The Panel notes that the Appellant became involved in criminal activities shortly after his arrival in Canada. Given that the Appellant studied law in his native country, he should have been aware of the potential consequences of his actions. However, the Appellant's involvement in the conspiracy was considered by the judge somewhat less serious, as reflected in the fact that he received a one year sentence while his co-accused received a three-year sentence.
8 On February 25, 2008, the Appellant was found guilty of one count of conspiracy and sentenced to 12 months in prison. This conviction resulted in a deportation order on October 28, 2008. The Appellant testified that he had met some men through his church, who were involved in a scheme to bring Peruvian immigrants into Canada illegally. He pled not guilty. The Appellant's sentence was reduced to eight months; he eventually served four months and then spent time in a transition house.
9 The Appellant has two other convictions. On January 19, 2007, he was found guilty of "failure to comply with a condition of undertaking or recognizance". The Appellant testified that he had violated a condition imposed by a judge, that he not have a cellular telephone. On April 17, 2008, the Appellant plead guilty to operating a motor vehicle while impaired. A fine of $600 was imposed which he is paying in monthly instalments of $40.00.
Possibility of Rehabilitation and Community Support
10 The Appellant participated in various activities while staying at a transition house upon his release from prison, including career workshops and voluntary work at a restaurant, serving meals to low income people. His re-entry into the workforce has been sporadic because he does not have a work permit. He applied for permanent residency on September 24, 20045 but his request was denied due to his criminal record. He has been issued a series of two-month work permits. Similarly, his wife, who has completed vocational training, cannot seek employment because she also lacks a work permit. Currently the family lives on welfare and relies on their local church for food. The Appellant testified that he has acquired a working knowledge of French and English since moving to Canada. The Appellant showed remorse in his testimony at the hearing and admitted the pain he had caused his family.
Establishment in Canada and Impact of Removal on Family in Canada
11 The Appellant has been in Canada for six years. The Appellant has four children. The two younger children, aged three and six, were born in Canada while the two older children, aged 14 and 16, were born in Mexico. The children are attending school in Canada and have learned French. If the Appellant were removed from Canada, the two youngest children, as Canadian citizens, would have the right to stay or to return as adults. The Panel notes that the Appellant testified that he has a large extended family in Mexico. The Appellant testified that his family had left Mexico in 2003 due to threats of violence made against them. One of his daughters was the object of a kidnapping threat. The Appellant's removal from Canada would separate the family and deprive the children from a regular contact with their father. They would suffer financial consequences.
12 The oral evidence was given under oath and the Appellant presented as a credible witness who answered questions, on balance, in a direct and straightforward manner. There were no material inconsistencies in his testimony and the other evidence before the Panel which have not been satisfactorily explained. The Panel is of the view that the Appellant has recognized that he made a serious mistake and that he should be given the chance to rehabilitate himself. The Appellant has a supportive family and receives assistance from his community church. The Panel hopes that the granting of a stay will allow the Appellant to be issued a work permit so that he can support his family and contribute to the Canadian community.
CONCLUSION
13 In conclusion, there are sufficient humanitarian and compassionate factors, in all the circumstances of the case, taking into consideration the best interests of the children directly affected by the decision, to grant a stay for two years with conditions. The full conditions of the Appellant's stay are as follows:
CONDITIONS OF STAY OF REMOVAL ORDER
The removal order in this appeal is stayed. This stay is made on the following conditions - the Appellant must:
1)
Inform the Canada Border Services Agency (the "Agency") and the Immigration Appeal Division (IAD) in writing in advance of any change in your address.
The address of the Agency is:
Canada Border Services AgencyHearings and Detention1010 Saint-Antoine Street West, First FloorC.P. 11760, Downtown Branch OfficeMontréal, QuébecH3C 6V8
The address of the IAD is:Immigration and Refugee BoardImmigration Appeal DivisionGuy-Favreau Complex200 René-Lévesque Boulevard WestEast Tower, Suite 102Montréal, QuébecH2Z 1X4
2)
Provide a copy of your passport or travel document to the Agency or, if you do not have a passport or travel document, complete an application for a passport or a travel document and to provide the application to the Agency.
3)
Apply for an extension of the validity period of any passport or travel document before it expires, and provide a copy of the extended passport or document to the Agency.
4)
Not commit any criminal offences.
5)
If charged with a criminal offence, immediately report that fact in writing to the Agency.
6)
If convicted of a criminal offence, immediately report that fact in writing to the Agency and the Immigration Appeal Division (IAD).
7)
Provide all information, notices and documents (the "documents") required by the conditions of the stay by regular or registered mail to the Immigration Appeal Division at the address: Guy-Favreau Complex, 200 René-Lévesque boulevard West, East Tower, Suite 102, Montreal (Qc) H2Z 1X4. Include your IAD file number. It is the responsibility of the appellant that the documents are received by the IAD within any time period required by a condition of the stay.
8)
Report to the Agency on September 1st, 2009 and on or about every first day the month after that date.
9)
The Appellant shall report in person with a written report. The report is to contain details of the Appellant's:
- employment or efforts to obtain employment if unemployed;
- current living arrangements;
- marital status including common-law relationships;
- attendance at any educational institution and any change in that attendance;
- attendance at meetings of Alcoholics Anonymous;
- other relevant changes of personal circumstances.
10)
Make reasonable efforts to seek and maintain full-time employment and immediately report any change in employment to the Agency.
11)
Attend an alcohol rehabilitation program at Alcoholics Anonymous.
12)
Not knowingly associate with individuals who have a criminal record or who are engaged in criminal activity, except contact that might result while attending meetings of Alcoholics Anonymous, or any other drug or alcohol rehabilitation program.
13)
Not own or possess offensive weapons or imitations of offensive weapons.
14)
Respect all parole conditions and any court orders.
15)
Refrain from the illegal use or sale of drugs.
16)
Keep the peace and be of good behaviour.
INTERIM RECONSIDERATION
An interim reconsideration of the case by the IAD will take place on or about the 21st day of July, 2010, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal. You will receive a notice to appear prior to the hearing date, if the IAD orders an oral interim reconsideration.
FINAL RECONSIDERATION
Take notice that the IAD will reconsider the case on or about the 21st day of July, 2011, or at such other date as it determines, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal. Until your final reconsideration is decided (or your stay is otherwise ended), your stay remains in effect and you must comply with the conditions of your stay, including advising the Agency and the IAD in writing before any change in your address.
The IAD may contact you by letter in advance of final reconsideration to ask you to provide written confirmation that you have complied with the conditions of stay.
IMPORTANT WARNING
This stay of removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by term of imprisonment of at least ten years) before your case has been finally reconsidered.
"Mariam S. Pal"
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