CONTRADICTORY EVIDENCE, LAcK OF CREDIBILITY IN RESIDENCY CASE

In the case below, the applicants were short of the residency requirement of 730 days in five years physical presence. Therefore, they argued at the IAD that the tribunal had to consider humanitarian and compassionate grounds because, amongst other things, they were "stateless Palestinians" , despite the fact that they were spending most of the time in the UAE. The court rejected all their arguments.

El Assadi v. Canada (Minister of Citizenship and Immigration)

Between
Malake El Assadi, Walid Sanallah, Applicants, and
The Minister of Citizenship and Immigration and the Minister
of Public Safety and Emergency Preparedness, Respondents

[2014] F.C.J. No. 50

2014 FC 58

Docket IMM-12678-12

 Federal Court
Ottawa, Ontario

Kane J.

Heard: December 16, 2013.
Judgment: January 17, 2014.

(55 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     KANE J.:-- This is an application for judicial review brought by the applicants of the decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") made on November 21, 2012, which dismissed the appeal of their removal order under subsection 63(3) of the Immigration and Refugee Protection Act (the "Act")for failure to comply with the requirements for permanent residency in Canada.

I. Background

2     The applicants, Malake El Assadi and her son, Walid Sanallah, came to Canada on January 10, 2005 as permanent residents and remained for only 22 days before returning to the United Arab Emirates ["UAE"]. The applicants returned to Canada in 2009. Between January 10, 2005 and January 10, 2010 the applicants spent only 377 days in Canada and as a result, were deemed to have lost their permanent resident status. The applicants do not contest that they failed to spend the requisite 730 days physically present in Canada over a five year period to retain their status as required by subsection 28(2) of IRPA. The applicants, however, submit that the Board's decision that humanitarian and compassionate grounds ["H&C"] do not warrant an exemption from the residency requirement is unreasonable.

3     Both applicants are stateless Palestinians registered in Lebanon with the United Nations Relief and Works Agency for Palestine Refugees ["UNRWA"]. Mrs. El Assadi has lived in the UAE since 1980. Walid was born in the UAE but is also a stateless UNRWA refugee.

4     The principal applicant's husband, Mr Sanallah, came to Canada in 2004 with his older son, Khaled. Mr Sanallah has travelled back and forth since then, spending most of his time in the UAE. He is not a party to the proceedings, but was a key witness given that the applicants'claim was largely based on the influence of Mr Sanallah as head of the family who made all the decisions and controlled the finances. He testified at the hearing that he still has his permanent residence in Canada. Khaled, who remained in Canada since 2004 is now a citizen. The family's oldest son, Ahmed, remains in the UAE.

5     For the reasons that fallow, the application for judicial review is dismissed.

II. The Decision under Review

6     The IAD noted that the applicants' degree of non-compliance with their residency obligation was significant, and therefore, the H&C considerations to overcome the requirements must also be significant.

7     The IAD considered the "Ribic" factors (see Ribic v Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4), approved by the Supreme Court in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84), which are to be taken into account in determining whether H&C considerations warrant an exemption from compliance with the residency requirements. These factors include: the applicants' initial and subsequent establishment in Canada; their reasons for departure and for remaining abroad; their attachment to Canada; whether there were reasonable attempts made to return to Canada at the earliest possible opportunity; and, the existence of special or particular circumstances.

8     The IAD concluded that the applicants lacked credibility and that they had failed to meet their burden of proof on a balance of probabilities and that there were insufficient grounds for H&C considerations to warrant the granting of special measures. The Board noted it was "obliged to conclude that they left Canada without just cause and did not return at the earliest possible opportunity." The Board acknowledged that the loss of their status would entail "some hardship", but that it was not a sufficient H&C consideration "in light of all the negative factors".

9     The IAD assessed the testimony of the applicants and Mr Sanallah, along with their son, Khaled and uncle/brother-in-law, Talal Sanallah, in great detail and in its consideration of the Ribic factors.

10     The IAD made very strong adverse credibility findings against the applicants and Mr Sanallah based on the inconsistency in their testimony, and based on Mr Sanallah's evasive responses.

11     The IAD rejected the assertion that exceptional circumstances required Mr Sanallah to remain in the UAE. The IAD concluded that he made little, if any effort, to find employment in Canada. Instead, Mr Sanallah chose to travel back and forth to the UAE. Mr Sanallah's testimony regarding his intentions to establish himself in Canada, his need to remain in the UAE because of a loan he had to repay, and his efforts to look for work were found not to be credible. The IAD noted that he had not resigned from his job in the UAE where he was a health inspector, and by his own evidence, did not intend to do so until he could collect his end of service payment in 2012. The IAD found that Mr Sanallah's explanation for remaining employed in the UAE was a personal decision, not a circumstance beyond his control, and not a justification for non-compliance with the residency requirements for the applicants, who remained in the UAE with him until 2009.

12     The IAD rejected the applicants' claim that cultural constraints prevented them from staying in Canada without Mr Sanallah or returning to Canada from the UAE without him. While Mrs El Assadi indicated that she had wanted to stay in Canada in 2005 but tradition required her to obey her husband, the IAD noted inconsistencies in her testimony particularly since she did return in 2009. The evidence about whether Mr Sanallah was opposed to or in agreement with that decision conflicted and the IAD did not accept the explanation that the applicants were encouraged to return to Canada by a friend who lived here.

13     The IAD also considered Walid's claim that it was out of his control to remain in Canada in 2005 because he was a minor. Extensive testimony was considered from his father and uncle regarding why he could not have remained in Canada with his uncle and attend school. The IAD concluded that Mr Sanallah had refused to permit him to remain in Canada. The IAD also referred to the Federal Court's finding that parental decisions should not enhance claims for relief where applicants are minors at the time they obtained their permanent resident status (Lai v Canada (Minister of Citizenship and Immigration Canada), 2006 FC 1359, [2006] F.C.J. No. 1698).

14     The IAD considered the applicants' efforts to establish themselves since their return in 2009, including Walid's employment and enrolment in a pre-nursing program at Algonquin College, and Mrs El Assadi's enrolment in English classes and volunteer activities and characterised this as "too little too late".

15     The IAD acknowledged that the applicants have family residing in Canada and that Walid and Khaled would support Mrs El Assadi. The IAD, however, found that the family was more established in the UAE than in Canada and their dislocation had been voluntary and self-imposed.

16     The IAD did not accept the applicants'submission that they were now unable to obtain UAE resident status. The IAD found Mrs El Assadi's testimony not credible because she first stated that their residencies were cancelled automatically then said, as confirmed by Walid, that Mr Sanallah had cancelled them in retaliation for them leaving the UAE. The IAD also found Mr Sanallah's testimony that Walid would be unable to resume his residency in the UAE to be not credible, observing that his brother Ahmed resides and works in the UAE.

17     The IAD also found that the applicants'ignorance of their own residency obligations in Canada did not justify non-compliance.

18     The IAD acknowledged that the applicants were stateless Palestinians. The IAD extensively questioned the applicants about their past travels to Lebanon, the family that remained there and their living arrangements.

19     The IAD noted that the applicants would face hardship in the event that they would return to Lebanon, but noted that they had returned to Lebanon in the past and stayed for months with family. The IAD found that the loss of their permanent resident status in Canada would result in some hardship but that this hardship was not sufficient to outweigh all the negative factors in this case.

III. Standard of review

20     It is well-settled that the standard of review for decisions of the IAD is reasonableness. In Shaath v Canada (Minister of Citizenship and Immigration), 2009 FC 731, [2010] 3 F.C.R. 117, Justice Lemieux discussed the Supreme Court's decision, Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, with respect to a stateless Palestinian who, like the applicants, appealed a departure order issued due to failure to comply with the residency obligation. Justice Lemieux considered subsection 63(4) of the Actwhich provides that the IAD must be satisfied that sufficient H&C considerations warrant special relief in order to allow an appeal:

·       [53] For the reasons that follow, I am of the view this judicial review application must be dismissed. Khosa makes it clear where reasonableness standard applies, it requires deference and reviewing courts are not allowed to substitute their own appreciation of the appropriate solution but rather must determine if the outcome falls "within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law". 

·       [54] Justice Binnie pointed out in Khosa, that paragraph 67(1)(c) of IRPA which applies here, provides a power to grant "exceptional relief and calls for a fact-dependent and policy driven assessment". 

·       [...] 

·       [56] Returning to Khosa, Justice Binnie concluded the IAD's decision fell within the range of outcomes reasonably open to it, a view which he said was predicated on the role and function of the IAD, as well as the fact Mr. Khosa did not contest the validity of the removal order made against him but only "sought the exceptional and discretionary relief that is available only if the IAD itself is satisfied that "sufficient humanitarian and compassionate considerations warrant special relief."" 

·       [57] Justice Binnie made another point in his conclusion. It does not matter whether the judge agrees with a particular IAD decision or not. That is beside the point as the decision was entrusted by Parliament to the IAD. 

21     This Court has confirmed that deference is owed to decisions of the IAD concerning findings of fact or of credibility, including where H&C considerations are taken into account for failure to meet residency requirements. In Digilov v Canada (Minister of Citizenship and Immigration), 2010 FC 615, [2010] F.C.J. No. 743, Justice Boivin noted that"[t]he IAD is in the best position to assess the lack of explanations given by the applicant. It is not the role of this Court, in the case at bar, to substitute its judgment for the findings of fact made by the IAD concerning the applicant's credibility." (at para 23). Justice Boivin cited Sanichara v Canada (Minister of Citizenship and Immigraton), 2005 FC 1015, [2005] F.C.J. No. 1272, at para 20 where Justice Beaudry noted:

·       The IAD, in a hearing de novo, is entitled to determine the plausibility and credibility of the testimony and other evidence before it. The weight to be assigned to that evidence is also a matter for the IAD to determine. As long as the conclusions and inferences drawn by the IAD are reasonably open to it on the record, there is no basis for interfering with its decision. Where an oral hearing has been held, more deference is accorded to the credibility findings. 

22     In this case, the applicants contest only the determination that there are insufficient H&C grounds to exempt them from the residency requirements, which they admit they have not met.

23     The applicants submit that the decision was not reasonable, primarily because the IAD did not give sufficient consideration to the hardship they would face upon return to Lebanon as stateless refugees or to their establishment in Canada since 2009.

24     The issue is whether the IAD's findings and overall decision that there were insufficient H&C grounds to overcome the applicants' failure to meet the residency requirement were reasonable. It is not for the Court to re-weigh the factors and re-balance the positive and negative factors to determine if H&C grounds justify an exemption.

25     A high degree of deference is owed given that the IAD held an oral hearing in which the applicants testified, along with Mr Sanallah, Talal Sanallah and Khaled Sanallah. Their counsel and the Minister's counsel questioned them carefully as did the IAD. This provided many opportunities to clarify the inconsistencies in their evidence and the vague answers of Mr Sanallah.

IV. The Issues

26     The applicants have raised three issues: first, that the IAD erred in ignoring the evidence, particularly the voluminous documentary evidence of the conditions of stateless Palestinians in assessing the hardship the applicants would endure if returned; second, that the Board microscopically analysed the evidence and the testimony of the applicants and the witnesses to support a view that H&C considerations were not justified and in doing so, misstated some of the testimony; and third, that the IAD made findings, particularly regarding the applicants' ability to return to the UAE, without any evidence.

Did the IAD err in ignoring evidence, particularly evidence of the situation of stateless Palestinians in Lebanon?

27     The applicants submit that the IAD ignored voluminous documentary evidence regarding the situation for Palestinians in Lebanon which described: the terrible living conditions in refugee camps; Palestinians'exclusion from state services; their risk of arbitrary detention; and, restrictions on their mobility, residency and citizenship

28     The applicants argue that the IAD's brief reference to "some hardship" highlights that it failed to consider the evidence that supports the applicants' claims and contradicts the IAD's own findings and is a reviewable error (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No. 1425 at para 17) [Cepeda-Gutierrez].

29     The respondent submits that the IAD reasonably found that the applicants were not credible, and as a result, they did not discharge their burden of demonstrating sufficient H&C grounds to warrant an exemption. Moreover, even if the applicants had been found to be credible, the IAD's analysis of the Ribic factors establishes that the applicants had not satisfied the criteria to warrant an exemption.

30     The respondent submits that the IAD did consider the hardship of returning to Lebanon, although not in great detail, and found that this hardship was insufficient given that the applicants travelled there previously and have close family there.

The IAD did not ignore evidence

31     The IAD did not ignore the documentary evidence, although the IAD did appear to focus more on the testimony of the applicants and witnesses.

32     The IAD considered all the evidence and how it addressed the Ribic factors.

33     The IAD noted the evidence of establishment in Canada since 2009 including Walid's language courses and enrolment in college as well as Mrs El Assadi's enrolment in English courses, a computer programme and a course to facilitate integration. The IAD also recognized that the applicants had family members in Canada, as well as in Lebanon and the UAE.

34     The IAD found that the applicants did not intend to establish themselves in Canada when they arrived for several reasons. Mr Sanallah did not make any real efforts to find employment and had not resigned from his job in the UAE and planned to remain employed in the UAE for several years so he could collect an end of service payment. The applicants failed to provide a satisfactory explanation for their departure 22 days after arriving, noting that it was either for financial reasons or because living with their uncle and his family was too crowded. The applicants also failed to provide a satisfactory explanation for not returning to Canada earlier, saying that Mr Sanallah would not agree, but had ultimately arrived in 2009 apparently without his agreement. In addition, the applicants had travelled from the UAE to Lebanon on three occasions, albeit for reasons related to family illness, and had remained for months. The IAD considered the applicants' establishment or attachment to Canada and found that it was "too little, too late", referring to the fact that these efforts only occurred after 2009 when they returned and realised that their status was in jeopardy. The IAD found that the applicants had greater attachment to the UAE where they lived since 1980 and where they returned after 22 days in Canada. The IAD also found that Mr Sanallah's testimony that they could not work in the UAE or regain residency was not credible.

35     The applicants' establishment in Canada since 2009, four years after they were granted permanent resident status, was reasonably found to be "too little, too late" - in other words, these efforts did not overcome the negative factors and were insufficient to warrant an exemption.

36     I do not agree that the IAD ignored the documentary evidence on the situation for stateless Palestinians. The IAD did not specifically refer to these documents but did acknowledge that the applicants were stateless Palestinians. The record reveals that their counsel and the IAD member questioned the applicants about their connection to and experiences in Lebanon, including about their remaining family there, their family's living situation, whether they lived in or near the refugee camp, where the applicants stayed when they visited and about their experiences and conditions more generally, as well as about their experience in the UAE since 1980.

37     The IAD need not mention each piece of evidence and is presumed to have considered all the evidence presented.

38     The applicants, however, argue that the IAD erred in not referring to the contradictory evidence.

39     In Cepeda-Gutierrez, Justice Evans, as he then was, held:

·       [16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. 

·       [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. 

40     In this case the IAD's finding was not contradictory to the documentary evidence referred to by the applicants. The IAD found that there would be "some hardship". The applicants argue that the hardship would be far greater than "some" and it should have been given more weight in the consideration of the H&C grounds. This would call for a re-weighing of the evidence, which is not the role of the Court. It was open to the IAD to assess the weight of the evidence of hardship in the event the applicants returned to Lebanon and then to determine that this hardship was not sufficient to outweigh all the other negative factors identified by the IAD.

41     In addition, the IAD found that the applicants' testimony and particularly that of Mr Sanallah, that they could not return to the UAE, was not credible. The IAD concluded that the applicants had a greater attachment to the UAE where they had lived most of their lives, although the IAD acknowledged that "in the event" they returned to Lebanon, there would be some hardship.

Did the IAD err by microscopically analyzing the evidence without regard to the totality of the evidence?

42     The applicants submit that their detailed testimony was microscopically or selectively analyzed for inconsistencies and that the IAD made findings, including credibility findings, which were not supported by or which misstated that testimony.

43     For example, the applicants submit that there was no inconsistency in their evidence that they could not remain in Canada in 2005 and live with their uncle for financial reasons and because of over crowding due to his large family. The IAD also misstated the facts about why they were able to return in 2009 despite Mr Sanallah's lack of agreement for them to do so.

The IAD did not microscopically analyse the evidence nor did it misstate the evidence

44     The IAD carefully -- but not microscopically -- analysed the applicants' evidence. The IAD made very pointed and strong adverse credibility findings which were reasonably open to the IAD to make given that it had the benefit of hearing the oral testimony, and had questioned the applicants extensively. The IAD supported its credibility findings with specific references to the contradictions and inconsistencies in the applicants' own accounts and between their accounts and those of Mr Sanallah and Talal Sanallah.

45     The IAD's conclusion that the applicants and Mr Sanallah were not credible was based on several inconsistencies and contradictions, including: Mr Sanallah's stated intention to stay in Canada despite failing to resign from his job in the UAE; his testimony that he was unable to find work, as contrasted with his brother's testimony that he could have had a job as a janitor; Walid's claim that he wanted to stay in Canada in 2005 and the inconsistent testimony of his uncle and father about the lack of agreement to permit his uncle to be his guardian.

46     The IAD also reasonably found that Mrs El Assadi was not credible with respect to why she was unable to stay in Canada or return at an earlier date but could come on her own in 2009. The IAD observed that while she initially stated that she had to obey her husband, she returned without her husband's consent. The IAD did not accept the explanation that a friend had encouraged her to come in 2009 or that Mr Sanallah had agreed that the friend could help pay for their tickets. The testimony of Mr Sanallah, Mrs El Assadi and Walid differed on this issue. The IAD also found her testimony inconsistent regarding the cancellation of their UAE residencies .

47     With respect to the applicants' submission that the IAD should not have regarded Mr Sanallah's desire to wait for his end of service payment as a negative factor, but rather as a positive factor because this demonstrated that he did not want his family to rely on social assistance in Canada, such an approach would be contradictory to the purpose of the residency requirements. It was reasonable for the IAD to consider this to be a negative factor; it demonstrated that there was no or little intention to establish the family in Canada in 2005 since Mr Sanallah would not receive his end of service payment until 2012.

Did the IAD err by making findings of fact without any evidence before it?

48     The applicants submit that the IAD erred in concluding that the applicants could obtain temporary resident permits for the UAE despite the absence of evidence and the contradictory oral evidence of Mr Sanallah.

49     The applicants also submit that the decision should have focused on their return to Lebanon -- which the IAD considered only minimally -- rather than on whether they could return to the UAE.

50     The applicants also submit that the IAD erred in referring to Mr Sanallah as if he were an applicant. For example, the IAD stated that, "Mr. Sanallah has not demonstrated, on a balance of probabilities, that exceptional circumstances beyond his control obliged him to leave Canada and remain in UAE".

The Board did not err in making findings in the absence of evidence

51     Although Mr Sanallah was not an applicant, the applicants' submissions that they should be exempt from the requirements to retain their permanent resident status repeatedly relied on Mr Sanallah's role as head of the family and decision maker, who basically controlled their ability to remain in or return to Canada. He was, therefore, a key witness to support their claim of H&C grounds. The IAD reasonably found that his testimony in several respects was not credible. The transcript supports these findings as his evidence was vague, inconsistent and he avoided many of the questions posed.

52     The IAD did not err in concluding that there was no evidence to corroborate the claim that the applicants could not resume their residency in the UAE. The applicants had the burden of demonstrating that sufficient H&C considerations existed to warrant an exemption from the residency requirements of the Act. This included demonstrating that they were exposed to hardship on the basis that they were ineligible for UAE residency and would be forced to return to Lebanon. The only evidence before the IAD was the oral testimony of the applicants and Mr Sanallah. The IAD found inconsistencies in their testimony about how the applicants lost their residency and whether they would be able to reapply. Mrs El Assadi initially said their residency was automatically cancelled after six months away but revised her testimony saying that her husband had cancelled it in retaliation after they left in 2009.

53     The applicants only gave vague answers to questions about their ability to reapply for the permits. Mr Sanallah's explanation of the visa process in the UAE and why Walid would be unable to obtain a resident permit was also evasive and based exclusively on his own unsupported experiences and was not believed. The IAD reasonably found that the applicants and Mr Sanallah attempted to mislead the IAD regarding their right to return to the UAE.

54     The IAD did not err in considering the applicants'return to the UAE, and not to Lebanon. Mrs El Assadi had lived in the UAE since 1980 with her husband and sons and Walid had been born and spent most of his life there. The Board was aware that the applicants were stateless and may be returned to Lebanon: it held that they would experience "some hardship"if that occurred, but it was outweighed by other factors.

55     Although the applicants take the position that the IAD should have given positive weight to Mr Sanallah's testimony that he has now learned from his mistakes, that his family should have remained in Canada but that he thought he was doing the 'right thing' by remaining in the UAE where he could work and repay his debts before coming to Canada, and that these mistakes should not negatively impact the applicants' status, this awareness unfortunately comes too late to benefit the applicants. Moreover, this reiterates some explanations that the IAD found not to be credible. It is incumbent on newcomers to Canada to know their obligations and their rights. Although the applicants may have been quite dependant on Mr Sanallah for the decisions which affected them, they had a responsibility to satisfy the residency requirement and because they could not do so, they had the burden to establish that there were exceptional circumstances to overcome those requirements. The IAD reasonably found that they did not do so.

JUDGMENT

·       THIS COURT'S JUDGMENT is that: 

·       1. 

The application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board made on November 21, 2012 is dismissed. 

·       2. 

There is no question for certification. 

KANE J.

MULTIPLE CONVICTIONS, BuT STILL STAYS....

See reported case below. Quite apart from the Board's reviewable errors, the better question of policy is why should society tolerate individuals who enter Canada and are found guilty of multiple offences?. Should there be automatic deportation of foreign nationals who commit multiple offences? What about the cost they impose on taxpayers? Should the protection of teh public at large take precendene over all other considerations? What do you think?  Should there be a policy debate on this issue?

Bosompem v. Canada (Minister of Public Safety and Emergency Preparedness)

Between Ato Bosompem, Applicant, and
The Minister of Public Safety and Emergency Preparedness,
Respondent

[2012] F.C.J. No. 213

2012 FC 196

Docket IMM-4865-11

 Federal Court
Toronto, Ontario

Zinn J.

Heard: February 2, 2012.
Judgment: February 10, 2012.

(42 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     ZINN J.:-- Mr. Bosompem asks the Court to set aside the decision of the Immigration Appeal Division of the Immigration and Refugee Board dismissing his appeal and setting aside the stay of his removal that it had previously granted on January 14, 2008.

Background

2     The applicant is 27 years of age and is a citizen of Ghana. He landed in Canada in 2000 when he was 15 and became a permanent resident. He completed grades 9 through 12 in Canada and has been working at a food service company for the past four years. He is the father of a two year old Canadian born daughter. The mother is a former girlfriend who figures prominently in the events that gave rise to the decision under review.

3     In 2003, when he was 18, Mr. Bosompem was arrested for robbing a convenience store with his friend who was armed with a sawed-off shotgun. The record shows that the applicant was there as a look out; he never entered the convenience store and he did not carry a gun. The applicant was charged with armed robbery. He pled guilty to robbery, was acquitted of armed robbery, and was sentenced to 18 months in prison.

4     As a consequence of the criminal conviction, a deportation order was issued against Mr. Bosompem; however, a consent order issued from the Immigration Appeal Division in 2008 staying his deportation for a period of three years, subject to conditions. Noteworthy among the conditions attached to the stay were that he "[n]ot commit any criminal offences... [r]espect all parole conditions and all probation orders...[and] [k]eep the peace and be of good behaviour."

5     After his release from custody, Mr. Bosompem entered into a relationship with a woman he had known from school. Their period together was of short duration; however, a child was born soon after they separated. Sometime in March or beginning of April 2010, Mr. Bosompem and this former girlfriend had an argument concerning their daughter. Although he was not living with the child and her mother, the record indicates that he agreed to pay child support and he regularly visited his daughter.

6     In early 2010, the former girlfriend accused Mr. Bosompem of trying to choke their daughter when he enlarged the hole in the nipple of the baby bottle so that more food could flow. Because of that incident, his former girlfriend prohibited Mr. Bosompem from seeing his daughter and refused to answer his telephone calls.

7     On April 22, 2010, following an argument relating to child support payments and custody of his daughter, Mr. Bosompem left his former girlfriend a voicemail stating: "I am going to murder you if you get me deported." He left a second voicemail on May 5, 2010, stating: "I am going to beat you down and cut your face the next time I see you." The former girlfriend reported these two threats to the police on May 7, 2010. Criminal charges were laid against Mr. Bosompem and he voluntarily surrendered himself to the police on June 3, 2010.

8     He pled guilty and on January 20, 2011, Mr. Bosompem was convicted of threatening death and bodily harm contrary to subsection 264(1) of the Criminal Code, RSC 1985, c C-46. He received a suspended sentence, 18 months probation, and was required to "attend and actively participate in such counselling programs for anger management and domestic violence program (PARS) and any other counselling programs within 30 days of this order as recommended by your probation officer."

9     As required by his probation officer, Mr. Bosompem attended and completed an anger management program conducted by The Salvation Army on October 23, 2010.

10     On June 30, 2011, Mr. Bosompem appeared before the Board for a reconsideration of the three year stay of deportation granted in 2008. On July 7, 2011, the Board set aside the stay of removal.

The Board's Decision

11     The Board properly conducted its analysis of the evidence using the factors enunciated by the Board in Ribic v Canada (Minister of Employment and Immigration), [1985] IADD 4, which were approved by the Supreme Court of Canada in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3: the seriousness of the offence, the prospects of rehabilitation, the establishment in Canada, the best interests of the applicant's daughter, and the hardship on him and his family members.

Seriousness of the offence

12     The Board noted that although Mr. Bosompem did not have a lengthy criminal record, it was nonetheless serious. It found that "a threat of harm and/or murder from a person, who has in the past displayed a propensity towards violence by virtue of having a firearm in the commission of an offence, would be frightening and in my view makes the offence even more serious." Both of the applicant's offences were stated to weigh heavily against him.

Prospects of rehabilitation

13     The Board found that Mr. Bosompem "attempted to minimize the seriousness of his last offence." This finding was based on his evidence that he did not mean the threats, that his former girlfriend knew he would never hurt her, that the threats were a result of her not allowing him to see his daughter, and that he moved on with his life and was now seeing his daughter and communicating with his former girlfriend through text messaging.

14     Further, the Board stated that because of this "downplaying" of the offences it was "not persuaded that he has accepted responsibility for them." This was stated to be a factor that weighed heavily against him.

15     Lastly, the Board noted that the only rehabilitative steps that were taken by Mr. Bosompem were Court-ordered and this too was found to be a factor weighing heavily against him.

16     As a result, the Board found his "prospects for rehabilitation have diminished given his new conviction ... demonstrates that he is still a potential threat to Canadian society."

Establishment in Canada

17     The Board attributed moderate weight in favour of Mr. Bosompem as a result of his establishment because of his young age and his four years of stable employment.

·       Family in Canada and best interests of a child directly affected by the decision

18     The Board noted the presence of some close family members such as Mr. Bosompem's new girlfriend with whom he lives, his step-father and half-sister in Canada, and his mother in the United States. The Board considered his young daughter to whom he has access every second Sunday from 9:30 a.m. until 5:30 p.m.

19     The Board found that Mr. Bosompem was genuinely interested in having a relationship with his daughter. It stated that while it is usually in the best interests of a child to have both parents close by, it is not always possible. The weight awarded by this factor was diminished as the Board found that Mr. Bosompem "still has an anger management problem which does not bode well for a role model." Moreover, the Board was satisfied that the applicant's daughter would have support in Canada, notwithstanding her father's deportation. The Board noted that no evidence was adduced as to why Mr. Bosompem's daughter could not travel to visit her father in Ghana later in life. Accordingly, only minimal weight was awarded to the presence of family members in Canada.

Hardship on the applicant and family members

20     The Board noted that Mr. Bosompem contributes financially to his child's support, but said that no evidence was led as to the possibility of him obtaining employment and sending money from Ghana. While the Board realized that Ghana's economy does not equate to Canada's, it was not in the position to take judicial notice of the fact that Mr. Bosompem would be unable to send money. Nonetheless, some weight was given in his favour because of the financial hardship his former girlfriend would endure if he is removed.

21     The Board noted that Mr. Bosompem testified that he sometimes gives rides and money to his sister. Although the sister and the stepfather were not present at the hearing and they did not provide letters in support of his testimony, the Board accepted that his removal from Canada would have some adverse affect on his family. Accordingly, minimal weight was attributed to this factor.

22     As for Mr. Bosompem's mother living in the United States, the Board stated that no evidence was tendered as to why his mother could not visit him in Ghana. Although it was accepted that Mr. Bosompem used to send some money to his 75 year-old grandmother in Ghana, no reasonable explanation was given to establish that he could not provide for her from Ghana. Moreover, the Board found that his personal hardship would be diminished since his grandmother lives in Ghana and he lived with her for the six years prior to his immigration to Canada. Similarly, the Board noted that a list of family members submitted in evidence suggested he has a 19 year old sister in Ghana which could also diminish his hardship. Although the record contains a document that indicates that Mr. Bosompem has a sister in Ghana, that was clearly in error as the immediately preceding document indicates that the very same named sister lives in Canada and he testified that he drives that sister occasionally. Further, this issue was specifically addressed at the hearing:

·       COUNSEL: What about your family back home? 

·       APPELLANT: My family back home is only my grandma that's there. 

The Board erred in its assessment of the evidence in this regard. This is of some importance as the Board relied on the applicant having a sister in Ghana when considering his ability to reintegrate to society in Ghana.

23     Mr. Bosompem's 11 year stay in Canada was found to not be particularly long. The Board found that apart from his years in high school in Canada, he was educated in Ghana. "He is familiar with the culture and at the very least, his grandmother and sister [live] there." The Board found no evidence as to why he would not be able to work and live in Ghana.

24     Although the Board was persuaded that Mr. Bosompem and his family would face some hardship from his removal, it was not persuaded that any hardship was undue. As such, minimal weight was attributed to this factor.

25     The Board concluded that Mr. Bosompem was given a chance to demonstrate that his behaviour would change but he chose to breach the conditions granted in 2008. The seriousness of his convictions and his diminished prospects of rehabilitation were found to outweigh the humanitarian and compassionate considerations. The stay of the removal order was set aside and Mr. Bosompem's appeal was dismissed.

Issues

26     The applicant in his written submission raised a number of issues. At the hearing, Mr. Waldman, counsel for Mr. Bosompem, candidly acknowledged that if the Court was of the view, as argued by the respondent, that the applicant's submissions amounted to a dispute as to the weight the Board gave to the evidence, then this application could not succeed. His position was that the Board based its decision on findings of fact that were not supported by the evidence.

Analysis

27     Having carefully read the complete record as well as the decision under review, I have concluded that some of the concerns raised by the applicant do not constitute a mere reweighing of evidence; they amount to mischaracterizing or ignoring of evidence that could have materially affected the result. Accordingly, while the appropriate standard of review for all the substantive issues is reasonableness, and while this is a deferential standard and the Court ought not to substitute its own view for that of the Board, in the unique facts before the Court, the decision under review, must be set aside.

28     In its decision, the Board Member stated: "I agree with counsel for the Minister that a threat of harm and/or murder from a person, who has in the past displayed a propensity towards violence by virtue of having a firearm in the commission of an offence, would be frightening and in my view makes the offense even more serious." The Board observed in a footnote to that passage that it "acknowledges that the appellant was convicted of robbery and not armed robbery; however, it was the appellant's own testimony that revealed that there was a firearm during the robbery." While it is true that Mr. Bosompem was found guilty of robbery, it is important to note, which the Board did not, that he was also found not guilty of armed robbery.

29     It is clear from the passage above, as well as from an earlier statement of the Board when reciting the facts behind the first conviction, namely that "he testified that he had a sawed off shotgun that belonged to the friend he was with at the time [of the robbery]," that the Board believed that Mr. Bosompem was armed during the robbery; he was not. Mr. Bosompem's testimony quite clearly shows that it was his friend, not he, who was armed.

·       MINISTER' COUNSEL: It's kind of scary to think someone that's capable of taking a shotgun and ... 

·       APPELLANT: It wasn't me that was holding it. 

·       MINISTER' COUNSEL: ... and holding up ... holding up a convenience store ... someone that's capable of that calling you and telling you that they're going to murder you, or telling you that they're gonna beat you down and cut your face, don't you think? 

·       APPELLANT: I know I threatened her, but in my head ... and she knows, and in her head too she knows I'm not going to do that. 

30     In my view, this error by the Board is significant because it undercuts the finding that Mr. Bosompem has "in the past displayed a propensity towards violence," a finding that played a large role in the Board's finding that the recent offence involving his former girlfriend would have been seen by her to be "frightening" and "makes the offense even more serious."

31     The Court does not discount the seriousness of the crime for which he was convicted, threatening death and bodily harm, but it was an error for the Board to give it increased weight based upon its false view of his previous record.

32     Further, the Board failed to consider the timing of the report to the police by the former girlfriend of these threats when it considered the seriousness of the offence, her reaction, and Mr. Bosompem's testimony that he did not mean to harm her and she knew that.

33     The former girlfriend reported the applicant's threats on May 7, 2010 - two weeks after the first telephone message was left and two days after the second. If she believed the applicant was serious and that her life was at risk, one would have expected her to have reported the first call to the police immediately after receiving it. This evidence strongly supports the applicant when he testified that she knew that he would not harm her and that his comments were made out of frustration when he was denied access to his daughter.

34     Moreover, it appears from the record that the police were of the same view. Although the report was made to them on May 7, 2010, they appear to have taken no steps to arrest the applicant. The record indicates that Mr. Bosompem voluntarily turned himself in to police on June 3, 2010, nearly a month after the offences were reported to the police. It is not evident from the record how the applicant learned of the charges, however, it is clear that he was working during this time and his former girlfriend knew his address at home and at work. There was therefore no impediment to arresting him if the police were of the view that these allegations placed the former girlfriend in imminent danger.

35     The Board concluded that the applicant had not accepted responsibility for his offences because he "downplayed" the offenses. The Board made that assessment based on his evidence (i) that he did not mean the threats, (ii) that the former girlfriend knew he would never harm her, and (iii) that the threats were the result of him being prevented from seeing his daughter. In fact, there is ample evidence in the record to establish that each of these statements is factually accurate. If so, they cannot be a basis for finding that he failed to take responsibility for his actions. Further, the Board failed to consider evidence that did show that he did take responsibility for his actions, such as the fact that he pled guilty to the offences, that he voluntarily surrendered to the police, that he gave frank testimony to the Board regarding his criminal offences, and that there was no action taken by him on either of the threats made - in fact there was no evidence that he ever approached the former girlfriend at all.

36     I am also troubled that the Board made a negative inference from Mr. Bosompem's lack of taking rehabilitative courses on his own initiative. He says that there was nothing in the record to suggest that he needed such courses. He says that there was also no evidence that he had "anger problems." He submits that the fact that in difficult circumstances he threatened his former partner, does not support a finding of generalized anger problems.

37     Mr. Bosompem does not have an extensive history of problems with the law. He had a serious conviction in 2003 and then kept out of trouble for seven years until 2010. The victim was not harmed and no violence was involved. Mr. Bosompem submits that in finding that he continued to be a threat, the Board ignored his general pattern of conduct, the context in which the incident occurred, and the post-offence conduct.

38     In my view, the Board erred in its analysis of the applicant's alleged anger management problem and failed to properly consider the remedial action that had been taken to address any anger management concerns.

39     With respect to the first point, the Board writes that the weight it would normally award the applicant relating to his child's interests in having him present "is diminished somewhat by the appellant's recent conviction which in my view displays that he still has an anger management problem [emphasis added]." There is no evidence at all that the applicant had any issues controlling his anger prior to the events that gave rise to these recent convictions. If his recent actions prove that he has an "anger management problem" then it is one of recent origin.

40     Further and addressing my second point, the Criminal Court as part of Mr. Bosompem's sentence ordered him to undergo whatever anger management therapy the probation officer considered appropriate. He was told to take a one-day course, which he completed successfully. Apparently the probation officer, someone more experienced than the Member in assessing anger management problems and required therapy, was of the view that a one-day course was sufficient to address any problems the applicant had controlling his anger. While it is open to the Board to disagree with that assessment, it must explain the basis for any such disagreement and for its view that more was required. If no more was required, then it was unreasonable to fault the applicant for failing to voluntarily take unnecessary additional courses and programs of treatment.

41     As a result of these errors, this decision must be quashed and remitted to a new panel for determination after a full hearing.

42     Neither party proposed a question for certification.

JUDGMENT

THIS COURT'S JUDGMENT is that this application is allowed, the decision is set aside and the applicant's appeal is remitted to a differently constituted panel for determination after a full hearing. No question is certified.

ZINN J.