Sanchez v. Canada (Minister of Citizenship and
Immigration)
Between
Margarita Veronica Vasquez Sanchez, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Margarita Veronica Vasquez Sanchez, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 278
[2014] A.C.F. no 278
2014 FC 272
Docket: IMM-4646-13
Docket: IMM-4646-13
Federal Court
Montréal, Quebec
Tremblay-Lamer J.
Heard: March 19, 2014.
Judgment: March 20, 2014.
Montréal, Quebec
Tremblay-Lamer J.
Heard: March 19, 2014.
Judgment: March 20, 2014.
(30 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.:-- This is an application
for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) of
a decision of the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board, dated May 30, 2013, upholding the deportation order against the
applicant, issued on August 25, 2010, by the Immigration Division pursuant to
paragraph 36(1)(a) of the Act.
FACTUAL BACKGROUND
2 The
applicant is a citizen of Peru. She became a permanent resident of Canada in
1996.
3 The
applicant was ordered deported because, on November 4, 2004, she pleaded guilty
to two counts of theft of property of a value not exceeding $5,000, one count
of conspiracy to commit the indictable offence of theft and one count of
possession of break-in instruments. These offences are part of a pattern of
similar offences committed by the applicant since 2000.
4 The
applicant appealed the decision of the Immigration Division before the IAD, on
the grounds that humanitarian and compassionate considerations warranted
special relief. The appeal was dismissed on May 30, 2013. She is seeking
judicial review of that decision.
PANEL'S DECISION
5 The
IAD's decision is not based on the legal validity of the deportation order, as
it is not in dispute. The appeal is based on the discretionary jurisdiction of
the IAD.
6 In
a case such as this, the onus is on the applicant to prove that special circumstances
warrant the exercise of discretion. In the exercise of this discretion, the IAD
considered the factors set out in Ribic v. Canada
(Minister of Employment and Immigration), [1985]
I.A.D.D. No. 4 (Ribic),
reiterated by the Supreme Court in Chieu v. Canada
(Minister of Citizenship and Immigration), 2002 SCC 3 (Chieu), namely:
the seriousness of the
offence leading to the removal order;
the possibility of
rehabilitation;
the length of time
spent in Canada and the degree to which the appellant is established
here;
the family in Canada
and the dislocation to the family that removal would cause;
the support available
to the appellant, within the family and within the community;
the potential foreign
hardship the appellant will face in the likely country of removal.
7 The
IAD also considered paragraph 3(1)(h) of the Act, which states that one of the objectives of the Act is
"to protect the health and safety of Canadians and to maintain the
security of Canadian society". The IAD further noted that it was guided by
the best interests of the child, as described in Baker
v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 (Baker).
STANDARD OF REVIEW
8 Section
67 of the Act grants the IAD wide discretion for assessing humanitarian and
compassionate considerations in the context of an appeal of a removal order (Chieu, above). Consequently, the applicable
standard of review is reasonableness (Canada (Minister
of Citizenship and Immigration) v. Khosa, 2009 SCC 12
at paragraph 58 (Khosa); see
also Ho v. Canada (Minister of Public Safety and
Emergency Preparedness), 2009 FC 597 at paragraph 32,
and Canada (Minister of Citizenship and Immigration) v.
Awaleh, 2009 FC 1154 at paragraph 24).
9 The
Court must therefore exercise deference and great restraint in determining
whether the findings are justified, transparent and intelligible, and whether
they fall within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law (Dunsmuir v. New
Brunswick, 2008 SCC 9 at paragraph 47 (Dunsmuir)).
ARGUMENTS OF THE PARTIES
Applicant's submissions
10 The
applicant begins by arguing that the IAD mischaracterized her. Indeed, the IAD
is alleged to have failed to consider the fact that the thefts were committed
after she had fallen in with the wrong crowd and that the applicant consulted a
psychologist who noted that she was making progress in her therapy. Solely the
applicant's impulsiveness was purportedly taken into account in the dismissal of
the appeal. Furthermore, it was wrong to conclude that she was a danger to the
security of Canadians under paragraph 3(1)(h) of the Act because she had not committed any thefts since July 25,
2009. The IAD also ostensibly underestimated her potential for rehabilitation.
11 The
emphasis placed on the security risk she posed for Canadians clouded the IAD's
findings with respect to the best interests of the child, a factor that was not
assigned the appropriate weight. Indeed, despite the fact that the IAD itself
had acknowledged that the applicant's daughters would face hardship if they
were to be separated from their mother or if they were to follow her to Peru,
it nonetheless gave more weight to the crimes committed by the applicant.
12 With
regard to the age of the children, although the IAD mentioned that the
applicant's eldest daughter would soon become an adult, it failed to consider
that the eldest daughter was still in school, or that the younger daughter was
in her early teens.
13 In
addition, the children's establishment in Canada was not taken into
consideration. Being Canadian citizens and having spent all of their school
years in Canada, the consequences of a potential move to Peru were not taken
into account.
14 In
light of the foregoing, the applicant submits that the IAD was not sensitive to
the impact her deportation would have on her children, and thus failed to meet
both the stringent requirements set out in Hawthorne v.
Canada (Minister of Citizenship and Immigration), 2002
FCA 475, and the analysis of factors relating to the best interests of the
child in their full context as indicated at paragraph 11 of Kolosovs v. Canada (Minister of Citizenship and Immigration), 2008 FC 165.
Respondent's arguments
15 The
respondent begins by arguing that the IAD carefully analyzed the evidence and
that the factors set out in Ribic, above, and approved by the Supreme Court in Chieu, above, were taken into consideration.
The Court noted that these factors are not exhaustive and that it is at the
discretion of the decision-maker to determine the weight to be accorded to each
factor, depending on the circumstances of each case (Nekoie
v. Canada (Minister of Citizenship and Immigration),
2012 FC 363 at paragraph 33 (Nekoie); Iamkhong v. Canada (Minister of
Citizenship and Immigration), 2011 FC 355 at paragraph
42 (Iamkhong); Philistin v. Canada (Minister of Public Safety and Emergency
Preparedness), 2011 FC 1333 at paragraph 17 (Philistin)).
16 The
respondent then summarizes offences committed by the applicant in order to
highlight their seriousness, including those that led to the deportation order.
The IAD reasonably found that the applicant's conduct endangered the safety of
Canadians, in view of the fact that the thefts were not committed to ensure her
survival or that of her family.
17 Although
the panel must be sensitive to the interests of the children affected, the
Federal Court of Appeal noted in Legault v. Canada
(Minister of Citizenship and Immigration), 2002 FCA
125, and reaffirmed in Kisana v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, that this
factor does not lead to a specific result and is not a paramount consideration.
18 The
respondent reiterates that it is not for the Court to reweigh the evidence or
to determine the weight to be accorded to each factor, and that the IAD's
decision in this case falls within a range of possible and reasonable outcomes.
ANALYSIS
19 The
central issue in this case is whether the IAD exercised its discretion
reasonably in its analysis of humanitarian and compassionate considerations.
20 As
the respondent has emphasized, the weighing of these factors must be done on
the basis of the circumstances of the case. Justice Martineau illustrates the point
in Philistin, above, at
paragraph 17:
· Further, since the weighing of these factors was not only
discretionary, but also largely depended on the facts of each case, the factual
matters decided by the IAD are reviewable on the reasonableness standard (Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39 at para 14, [2003] F.C.J. No. 108). In that sense,
the Court's review is limited to "the existence of justification,
transparency and intelligibility within the decision making process" and
"whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law" (Dunsmuir
v. New Brunswick, 2008 SCC 9, at para 47).
21 Justice
Bédard also indicates in Nekoie,
above, at paragraph 33 that "it is at the discretion of the IAD to
determine the weight to be accorded to each factor and to each piece of
evidence; this Court ought not to interfere with those determinations
regardless of whether or not the Court agrees with the outcomes" (citations
omitted).
22 Furthermore,
in Iamkhong, above, at paragraph
42, Justice Noël notes that "the exercise of the IAD's discretion is to be
guided by these factors, but that they are not the full extent of the analysis
to be undertaken", indicating that these factors are merely indicators.
The IAD is not even required to undertake a point-by-point analysis of these
factors because "[t]he important thing is that the panel actually take
these factors into account in its decision" (Canada
(Minister of Public Safety and Emergency Preparedness) v. Reyes, 2009 FC 1097 at paragraph 20, cited in Iamkhong, above, at paragraph 43).
23 In
this case, I find that the analysis of the factors by the IAD was reasonable.
In order to gauge the seriousness of the applicant's criminality and her
potential for rehabilitation, it was well within the IAD's discretion to
consider the numerous offences committed by the applicant, some of which were
committed after the deportation order was issued, and her failure to comply
with certain orders of the Court.
24 In
addition, it was reasonable for the IAD to conclude that despite the fact that
the removal of the applicant to Peru could cause her some hardship, having not
lived there since she arrived in Canada in 1995, she would not find herself
destitute. Indeed, her parents and sister are there, she speaks Spanish, and
her qualifications as a housekeeping attendant are not specific to employment
in Canada.
25 As
for the best interests of the children, contrary to what the applicant claims,
the IAD did not simply mention in passing that it had been alert and sensitive
to the interests of the children, but considered the points raised by the
applicant in its analysis.
26 It
recognized that the girls were attached to their mother and that a potential
separation or move to Peru would surely cause hardship with regard to the
continuation of their studies in Spanish, as this excerpt form the decision
attests:
· The panel accepted written statements from the girls and it is
obvious that they are very attached to their mother. If they are separated from
their mother, they will certainly suffer emotional hardship and if they choose
to accompany their mother to Peru, they will no doubt experience hardships,
even though they speak Spanish, that they never encountered in Canada where
they were born and educated. (paragraph 21)
27 The
IAD also rightly noted that the girls could live with their father, which would
allow them to remain in Canada to finish their studies.
28 As
the respondent indicated, while the panel was sensitive to the interests of the
children, the presence of children does not lead to a certain result, and it
was up to the IAD to determine the weight that should be given to this factor
in the circumstances, as the Federal Court of Appeal indicated in Legault, above, at paragraph 12 and in Kisana, above, at paragraphs 24 and 72.
29 I
am satisfied that the IAD properly analyzed the girls' situation. It is not for
the Court to reweigh the evidence, but to determine whether the conclusions of
the IAD fall within a range of possible outcomes with respect to the facts and
law (Dunsmuir, above, at
paragraph 47). Such is the case here.
30 For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for judicial review is dismissed.
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