Haniff v. Canada (Minister of Citizenship and
Immigration)
Between
Alim Mohamed Haniff, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1008
2012 FC 919
Docket IMM-9476-11
Federal Court
Toronto, Ontario
Snider J.
Heard: July 17, 2012.
Judgment: July 20, 2012.
Docket IMM-9476-11
Federal Court
Toronto, Ontario
Snider J.
Heard: July 17, 2012.
Judgment: July 20, 2012.
(38 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
SNIDER J.:--
I. Background
1 Mr.
Alim Mohamed Haniff, the Applicant in this application for judicial review, is
a citizen of Guyana who has been in Canada since 1995. Between April 2003 and
December 2006, the Applicant acquired five criminal convictions. As a result,
by decision dated October 26, 2005, he was ordered removed from Canada, on
grounds of "serious criminality" under s. 36(1)(a) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA]. A Deportation
Order was issued against him.
2 The
Applicant appealed his Deportation Order, seeking a stay of his removal. In a
decision dated April 18, 2007, a panel of the Immigration and Refugee Board,
Immigration Appeal Division (the IAD) granted Mr. Haniff a four-year stay of
the Deportation Order on certain conditions. In 2011, the Minister of Public
Safety and Emergency Preparedness (the Minister) requested a review of the
stay, alleging that the Applicant had breached several conditions.
Specifically, the Minister claimed that the Applicant had breached the
conditions of his stay in the following manner:
on August 28, 2009, he
was convicted of impaired driving and failing or refusing to provide a sample
of his blood;
he did not provide
proof of completion of an anger management program, an intimate partner abuse
program and a substance abuse program; and
he had accumulated
outstanding fines in the amount of $3,230.00.
3 A
review hearing was held on November 10, 2011, before a member of the IAD (the
Member). In a decision dated November 18, 2011, the Member determined that the
stay should not continue. The effect of this decision is that the Applicant's
appeal of his removal has been dismissed and his removal order may be acted on
by the Minister.
4 The
Applicant seeks judicial review of the decision of the Member.
II. Issues
5 The
issues before me on this application for judicial review, as clarified during
oral submissions, are the following:
Did the Member fail to
provide the Applicant with a full and fair hearing:
by permitting the late
filing of evidence by the Minister, in contravention of Rule 30 of the Immigration Appeal Division Rules,
SOR/2002-230 [IAD Rules];
by curtailing the
Applicant's right to re-examine his mother, who was the only other witness at
the hearing;
by unduly interfering
with counsel's questioning of the Applicant or his mother; and
by making statements
that amounted to a pre-determination of the outcome of the hearing?
Did the Member fail to
have regard to the best interests of the Applicant's young child?
III. Statutory Framework
6 I
begin by briefly describing the statutory framework affecting this application.
7 There
is no dispute that the Applicant is inadmissible under s. 36(1)(a) of IRPA on grounds of serious criminality. A
permanent resident is inadmissible under that provision if he or she has been
convicted in Canada of an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years, or of an offence for which a
term of imprisonment of more than six months has been imposed. Because of the
Applicant's inadmissibility, pursuant to s. 45(d), the Immigration Division
(the ID) was obliged to issue a removal order (in this case, the Deportation
Order).
8 Under
s. 63(3) of IRPA, an
admissibility decision of the ID can be appealed to the IAD. After considering
the appeal, the IAD, pursuant to s. 66, shall order one of the following: (a)
"allow the appeal in accordance with section 67"; (b) "stay the
removal order in accordance with section 68"; or (c) "dismiss the
appeal in accordance with section 69".
9 Section
68 of IRPA deals with staying
removal orders. Pursuant to s. 68(1), in order to stay a removal order, the IAD
must be satisfied, taking into account the best interests of a child directly
affected, that sufficient humanitarian and compassionate considerations warrant
special relief in light of all the circumstances of the case. In granting a
stay of a removal order, the IAD "shall impose any condition that is
prescribed and may impose any condition that it considers necessary".
10 Once
the IAD has stayed a removal order it may, at any time, and on its own
initiative or on application, reconsider the appeal (s. 68(3)). Under s. 69(1),
the IAD shall dismiss an appeal if it does not allow the appeal or does not
stay the removal order.
IV. Standard of Review
11 As
determined by the Supreme Court in Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR
339, the standard of review of a decision of the IAD is reasonableness. Justice
Binnie described this standard as follows at paragraph 59:
· Reasonableness is a single standard that takes its colour from the
context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as
undue complexity and formalism. Where the reasonableness standard applies, it
requires deference. Reviewing courts cannot substitute their own appreciation
of the appropriate solution, but must rather determine if the outcome falls
within "a range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir, at para. 47). There might be more than one reasonable outcome.
However, as long as the process and the outcome fit comfortably with the
principles of justification, transparency and intelligibility, it is not open
to a reviewing court to substitute its own view of a preferable outcome.
12 The
Supreme Court's guidance in Khosa is of particular assistance since that case dealt with a person
similarly situated to the Applicant in the case at bar. In Khosa, a young man had been determined to be
inadmissible to Canada for serious criminality and the IAD had dismissed the
appeal brought pursuant to s. 67(1)(c). The task of the IAD was explained by
Justice Binnie at paragraph 57 as follows:
· In recognition that hardship may come from removal, Parliament has
provided in s. 67(1)(c) a power
to grant exceptional relief. The nature of the question posed by s. 67(1)(c) requires the IAD to be "satisfied
that, at the time that the appeal is disposed of ... sufficient humanitarian
and compassionate considerations warrant special relief". Not only is it left to the IAD to determine what constitute
"humanitarian and compassionate considerations", but the
"sufficiency" of such considerations in a particular case as well.
Section 67(1)(c) calls for a
fact-dependent and policy-driven assessment by the IAD itself.
· [Emphasis added]
13 The
issue of the procedural fairness of the hearing before the Member is not
reviewable on a standard of review; either the hearing was fair or it was not.
V. Analysis
A. Issue #1: Fairness
14 In
support of his argument that the hearing before the Member was unfair, the
Applicant raises four alleged problems that, in his view, resulted in an unfair
hearing.
15 The
overarching concern that I have with these arguments is that, during the
hearing, counsel for the Applicant raised none of the problems now alleged. At
no time did the Applicant or his counsel attempt to question the Member on his
actions, seek an adjournment or bring a motion for the Member to recuse
himself. It is incumbent on a person seeking to overturn a decision on this
basis to bring forward any alleged unfairness or bias at the first opportunity
(see e.g. In re Human Rights Tribunal and Atomic Energy
Can (1985), [1986] 1 FC 103 (CA), 24 DLR (4th) 675; and Yassine v Minister of Employment and Immigration (1994), 172 NR 308 at para 7 (FCA), 27 Imm LR (2d) 135). As pointed
out by Justice Near in Zhong v Canada (Minister of
Citizenship and Immigration), 2011 FC 279 at para 22,
[2011] FCJ No 323 (QL):
· Failure to raise a timely objection to a perceived breach of natural
justice is considered by the jurisprudence of this Court to be an implied
waiver of any such breach that might have occurred (Kamara
v. Canada (Minister of Citizenship and Immigration),
2007 FC 448, 157 ACWS (3d) 398 at para 26).
16 In
response, the Applicant argues that his counsel was likely
"intimidated" by the Member. This is simply not an excuse for counsel
permitting an allegedly unfair hearing to proceed.
17 This
is sufficient to dispose of this issue. However, a review of the allegedly
unfair actions demonstrates that, either singly or cumulatively, they do not
demonstrate that the hearing was unfair.
18 The
Applicant's first concern relates to a package of documents faxed by the
Minister to the IAD and the Applicant (the November 4 Package) six days prior
to the commencement of the hearing. The November 4 Package calls into question
the credibility of the Applicant's testimony with respect to his girlfriend
(AR). The Applicant acknowledges that the IAD Rules permit the late filing of evidence in the Member's discretion but
argues that the Member erred by admitting this particular evidence. I do not
agree.
19 At
the hearing, counsel for the Applicant objected to the admissibility of the
November 4 Package on the basis that: (1) he had only received that document
six days before the hearing; and (2) it was not directly relevant to the Applicant.
The Member considered the arguments of counsel and held that the documents were
relevant and had probative value. The Member further explained that the
Applicant would have an opportunity to address the evidence.
20 In
addition to the fact that, by not objecting, the Applicant had impliedly waived
his objection, I observe that counsel for the Applicant received the documents
six days prior to the hearing. Thus, counsel and the Applicant had six days to
prepare a response. Indeed, the transcript of the hearing reveals that the
Applicant was able to address this evidence when questioned by the Minister's
counsel, and that he had in fact reflected on the impugned evidence and
discussed it with AR prior to the hearing. It should also be noted that the
Applicant appears to have attempted to conceal this evidence on direct
examination, as he suggested that the only obstacle preventing him from
marrying AR was his need to develop personally. However, in response to a
question from the Member, the Applicant conceded that "the real
reason" he cannot marry AR is that she is married to someone else.
21 The
acceptance of the November 4 Package into evidence was not a breach of natural
justice.
22 The
Applicant's second argument is that the Member breached the rules of procedural
fairness by rushing the hearing. Once again, I do not see any error in the
manner in which the Member acted.
23 Aside
from the Applicant, the Applicant's mother was the only witness to testify at
the hearing. The Applicant submits that the Member contravened the rules of
procedural fairness by curtailing or rushing his counsel's questioning of his
mother. After seven pages of questions from counsel for the Applicant and
nearly seven pages of questions from the Minister's counsel, counsel for the
Applicant indicated that he had "a few questions" on re-examination.
The following brief exchange then took place between counsel for the Applicant
and the Member:
· MEMBER: Make if brief counsel because we are
coming to twelve. We have had a lot of questions and answers in this hearing so
far and I need to hear submissions. So I want to finish by 12:00. I need to
finish by 12:00 actually.
· COUNSEL: I will be brief. [....]
24 Counsel
for the Applicant then proceeded to ask the Applicant's mother four questions.
After the Member refused to accept documents regarding the purchase of the
family home into evidence, counsel for the Applicant agreed to proceed to his
submissions:
MEMBER: All right
counsel's submissions now.
COUNSEL: Yes. [....]
25 While
rushing on the part of a tribunal may deprive a party of a fair hearing (see
e.g. Mazouni v Canada (Minister of Citizenship and
Immigration), 2003 FC 1519 at para 8, [2003] FCJ No
1927 (QL)), that does not appear to be the case here. Counsel was not prevented
from re-examining the witness. The Applicant has not pointed to any evidence
which he would have adduced had he been given additional time.
26 In
these circumstances, the Member's statement that counsel should be
"brief" did not prevent the Applicant from receiving a full and fair
hearing or breach the principles of natural justice or procedural fairness.
27 The
Applicant further argues that he was denied a full and fair hearing because the
Member "seemed to 'prosecute'" the case by interrupting his counsel's
examination in chief to "interject his own line of questioning". Once
again, I do not agree.
28 A
review of the transcript does not demonstrate that the Member's questioning was
intrusive or that the Applicant was prevented, by such interruptions, from
presenting his case.
29 The
decision of Kumar v Canada
(1987), [1988] 2 FC 14 (CA), 81 NR 157 [Kumar], upon which the Applicant relies, is distinguishable. In Kumar, above at 18, the Court of Appeal found
that the applicant had been denied natural justice as a result of the
chairman's "gross interference with the orderly presentation of [his]
case". In reaching that conclusion, the Court of Appeal noted that the
chairman had made several "intrusive and intimidating" interjections,
including the statement that he considered cross-examination to be unnecessary
because "This is one of the most ridiculous cases I have ever heard in my
life" (Kumar, above at 16).
The Member's interjections in this case bear little resemblance to those at issue
in Kumar: They were posed in an
orderly fashion, did not curtail any of the Applicant's answers, and in no way
dominated the examination in chief.
30 In
my view, the Member's questioning does not give rise to a denial of natural
justice that would justify intervention by the Court.
31 Finally,
the Applicant argues that the Member came to the hearing having pre-determined
the matter. This, argues the Applicant, resulted in an unfair hearing. The
Applicant submits that the following statement, made by the Member during
counsel's closing submissions, indicates that the Member had pre-determined the
result:
· COUNSEL: [....] Sir I am respectfully
submitting that this appeal should be allowed or in the alternative this stay
should be extended.
· MEMBER: Honestly I do not see how you can
reasonably submit that the appeal should be allowed. I mean that is not... I do
not usually comment on people's submissions when I make them but I expect
people to make responsible and reasonable submissions. There has been several
serious breaches here. Non-reporting, a new offence, two counts actually of
convictions. How can you possibly say in the light of all of this that I should
allow the appeal outright. I do not understand that. I do not understand the
basis of that submission.
32 The
Member, faced with an appeal by the Applicant, stated at the opening of the
hearing that there were three possible outcomes: (1) he could allow the appeal
and effectively vacate the Deportation Order; (2) he could continue the stay on
conditions; or (3) he could dismiss the appeal. By his comments - both at the
commencement of the hearing and as noted above at the end - it appears that the
Member foreclosed the possibility of allowing the appeal. Given the extent and
nature of the Applicant's breaches of the conditions of his stay, the Member's
statement was not surprising or unreasonable. Nothing presented in evidence
changed the fact that the Applicant had a lengthy criminal history and had
seriously breached the conditions of his stay. However, what is more important
is that the Member clearly did not foreclose the possibility of continuing the
stay and proceeded, after the above comment, to listen attentively to counsel's
submissions on that possibility.
33 The
transcript demonstrates that, when the Member set out his views on the
possibility of allowing the appeal, counsel accepted that result without
question and carried on to argue the Applicant's alternative position. On these
facts, there was no error.
34 Overall,
based on my reading of the history of this matter and the transcript of the
hearing, I conclude that the hearing was conducted in accordance with the rules
of procedural fairness. The four examples cited by the Applicant, when read in
the context of the entire record, do not lead me to doubt the fairness of the
proceeding.
B. Issue #2: Best interests
of the child
35 Although
he does not reside with his child, the Applicant is father to a young boy in
Canada. The Applicant asserts that the Member failed to take the best interests
of his son into account when determining whether the stay should be continued.
36 As
required by s. 68(1) of IRPA,
the IAD must take into account the best interests of a child directly affected
by its decision to stay a removal order. It is well-established, however, that
the interests of a child are not determinative; the IAD must examine all factors relevant to the stay. Those
factors are referred to as the "Ribic factors", as first set out in Ribic v
Canada (Minister of Employment and Immigration), [1985]
IABD No 4 (QL) [Ribic], which
was approved by the Supreme Court of Canada in Chieu v
Canada (Minister of Citizenship and Immigration), 2002
SCC 3, [2002] 1 SCR 84. The weighing of those factors is the responsibility of
the IAD. As noted above, the task of the IAD was described by Justice Binnie in
Khosa, above at paragraph 57, as
being to "determine what constitute 'humanitarian
and compassionate considerations'", as well as
"the 'sufficiency' of such considerations in a
particular case [...]".
37 In
this case, the Member examined the facts relating to the Applicant's child; no
evidence was ignored. The Member concluded that "it is in the best
interests of the [Applicant's] son to have both of his parents in Canada;
however, it is not determinative". The Member then proceeded to weigh this
positive factor along with the other Ribic factors. I do not see how the Court can intervene in the Member's
assessment of the child's interests or his weighing of the Ribic factors.
VI. Conclusion
38 For
these reasons, the application for judicial review will be dismissed. Neither
party proposed a question for certification.
JUDGMENT
· THIS COURT ORDERS AND ADJUDGES that:
SNIDER J.
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