Date: 20021205
Docket: IMM-5710-01
Neutral citation: 2002 FCT 1261
BETWEEN:
NEVILLE BEAUMONT
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SNIDER, J.
[1] This is an application for judicial review of a decision of the Immigration Appeal Division ("IAD"), to lift the stay against the execution of the deportation order against Neville Beaumont ("Applicant"). The decision was made on October 21, 2001, and received by the Applicant on December 6, 2001. The Applicant seeks a writ certiorari, quashing the decision of Member S.R. Wales of the IAD and referring the matter back to be dealt with by a different officer.
FACTS
[2] The Applicant is citizen of Jamaica and a permanent resident of Canada who has been living in Canada since 1976, when he was 16 years old. The Applicant was convicted of trafficking in cocaine on June 12, 1998. As a result of this conviction, the Applicant was brought to an immigration inquiry which resulted in a deportation order being made against him on September 2, 1998 pursuant to section 32(2) of the Immigration Act R.S.C. 1985, c. I-2, as amended. The adjudicator issued the deportation order after finding that the appellant was a person described in section 27(1)(d) of the Act in that he had been convicted in Canada of an offence for which a term of imprisonment of five years or more may be imposed.
[3] The Applicant appealed the decision to the immigration official pursuant to section 70(1)(b) of the Act, which provided as follows:
70.(1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
[4] The IAD considered the factors set out in Ribic, Marida v. M.E.I. (I.A.B. T-9623-84, August 20, 1985) in determining whether the IAD should exercise its discretion under section 70(1)(b) including:
1. the seriousness of the offices leading to the deportation and the possibility of rehabilitation;
2. the length of time spent in Canada and the degree to which the appellant is established;
3. family in Canada and the dislocation to that family that the deportation of the appellant would cause;
4. the support available for the appellant not only within the family but also within the community.
[5] The IAD, on June 3, 1999, ordered a stay of the deportation order for three years. The stay was conditioned upon the following terms and conditions:
· report in writing every six months with details regarding his employment, his living arrangements, attendance at drug rehabilitation programs, and participation in psychotherapy and/or counselling;
· report in writing any changes of address;
· report in writing any criminal convictions;
· make reasonable efforts to find employment;
· engage in psychotherapy until such time as the person providing such therapy attests in writing that such therapy is not required;
· attend a drug rehabilitation program until it is attested by the person providing the therapy that such therapy is not required;
· make reasonable efforts to maintain himself in such a manner that his drug addiction will not cause harm to himself or to others and it is not likely that he will commit further offenses;
· not associate with criminals;
· not own or possess weapons;
· respect all conditions of his parole;
· refrain from the illegal use or sale of drugs;
· keep the peace and be of good behaviour.
[6] The oral review was conducted on June 21, 2000. At this time the IAD found that despite two violations of the terms and conditions of the above stay, the stay would be continued for 2 more years. Specifically the IAD found that the Applicant failed to report in writing as required on September 1, 1999 and on March 1, 2000 as required, and that he also failed to engage in psychotherapy.
[7] The stay was extended for an additional period of two years. The IAD directed that an oral review was to take place on or about the 21st of June, 2001 and stated that "I expect at the oral review to hear evidence of treatment for his mental illness of his efforts to obtain employment and of the support given to him by family members and members of the congregation which he attends in Belleville." The terms and conditions of the stay were amended and essentially removed the condition for psychotherapy and drug rehabilitation.
[8] The IAD's decision in issue was based on an oral review held on October 22, 2001. The IAD decided, at that time, that the stay should be cancelled, that the appeal should be dismissed and that the removal order should be executed as soon as reasonably practicable.
[9] The IAD found that:
Again, the appellant is found to be in breach of his reporting requirement in that no written report was filed as required for June 15, 2001. He also testified that he was in breach of the obligation to take all medication. He admitted that he failed to do so in August 2001 and again heard voices.
...
The expectations for the second review were clearly set out at page 3 of the reasons. The terms and conditions were amended. The appellant was required to report, to attend Alcoholic Anonymous and to maintain himself in such condition as chronic schizophrenia would not cause him to conduct himself in a manner dangerous to himself or anyone else. He was also required to take all medications as prescribed.
...
The appellant has a serious mental illness. He has caused injury to himself in the past because of this illness. He has not conformed to the requirements to continue taking medication as confirmed by his breach in August 2001. He has not reported....
...
Why have I come to this conclusion? There are three factors. First, the appellant is persistent in failing to report as required. Second, the appellant did not provide any evidence independent of the appellant of treatment being received for his mental illness. Thirdly, the appellant admitted the breach of the term that required him to take medication as prescribed. He confirmed that he again heard voices in August 2001.
ARGUMENTS
Applicant's Submissions:
[10] The Applicant argued that the IAD made a reviewable error after it lifted the stay without examining all the circumstances of the Applicant's case. Further, the Applicant stated that the IAD misinterpreted the evidence which was before it and that the decision was unreasonable.
[11] The Applicant submitted that the IAD was required to again consider all the circumstances of the case and failed to do so. The Applicant cited Burgess v. Canada (MCI) [1998] F.C.J. 1302 (F.C.T.D.) as authority that the IAD must consider all the circumstances of the case which includes the respondent's initial situation, his new convictions and his situation since his stay. The IAD, in this case, only considered the failure of the Applicant to comply with the conditions of the stay and did not look beyond that, despite the fact that it was over three years since the grant of the first stay.
[12] The Applicant further submitted that the IAD misconstrued the evidence before it in that the Applicant had taken his medication, was seeing his doctor, and had explained why he failed to submit the report on June 21, 2001.
[13] The Applicant submitted that the decision was patently unreasonable. Further, the Board failed to consider, as it had before, the limited comprehension skills of the Applicant there was no evidence before the IAD to indicate that the Applicant had gone back to his old conduct in consuming illicit drugs, committed any crimes or been violent. The Applicant argued that, while the failure to report once and to bring in a medical letter were technical breaches of the conditions, they were not sufficient to lift the stay. It was submitted that cancelling the stay was punitive and not in keeping with the objectives of the Act.
The Respondent's Submissions:
[14] The Respondent submitted that the IAD's findings of fact are entitled to substantial deference by the Court.
[15] The hearing on appeal constituted a fresh exercise of discretion and the evidence given by the Applicant at his previous hearing formed part of the IAD's file.
[16] In the submission of the Respondent, if the finding of the IAD is reasonable, it must stand. The finding was not made in a perverse or capricious manner or made without regard to the material before it. The Applicant provided no medical evidence from any medical physician and his own evidence was that he had breached his obligation to take all his medication. The decision here was made in good faith and there was no reliance placed upon irrelevant or extraneous considerations.
[17] The Respondent argued that the record of the IAD shows that all circumstances of this case were before the IAD and that nothing had changed since the 2000 review by the IAD. Further, the Applicant was under an obligation to show that he should be allowed to remain in Canada and that he could have brought forward evidence to show that the circumstances had changed. In the Respondent's submission, the adjudicators in each of the previous decisions had expressed clear concerns about the Applicant's medical condition. Therefore, the failures of the Applicant to meet the technical requirements of the conditions became very important.
ISSUES
[18] The issues in this case are as follows:
1. Did the IAD err in law in failing to consider all the circumstances of the case?
2. Was the IAD's decision patently unreasonable with respect to their finding of fact?
ANALYSIS
Standard of Review
[19] The Court must first determine what standard of review to apply to this case. The Supreme Court in Pushpanathan v. Canada (Minister of Citizenship & Immigration) [1998] 1 S.C.R. 982. determined that, ordinarily, the standard of review for questions of fact and mixed fact and law is patently unreasonable, whereas for questions of pure law the standard of review is correctness.
[20] The applicable standard of review is discussed in the case of Romans v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 740 (F.C.T.D). whereby the Court affirmed that the standard of review with respect to the findings of the IAD. The Court stated:
Analysis of this issue begins with consideration of the applicable standard of review. The Appeal Division has been given a broad discretion to allow a person to remain in Canada. Thus, for a decision of the Appeal Division on this issue to be reviewable it must be shown that the Appeal Division either refused to exercise its discretion or exercised its discretion other than in accord with established legal principles. If exercised bona fide, and not arbitrarily or illegally, and without regard to irrelevant considerations, the Court is not entitled to interfere with the Appeal Division's decision. It is not enough that the Court might have exercised the discretion differently.
[21] The question of whether the IAD considered the right factors in its decision to cancel the stay is a question of law and therefore a correctness standard of review should apply. The assessment of the weight that the IAD placed on the evidence and how it interpreted that evidence at the hearing is a question of fact and should be reviewed on a standard of patent unreasonableness.
ISSUE 1
The factors considered by the IAD
[22] Both parties agreed that the IAD, in deciding whether to vacate a stay, should consider all of the circumstances of the case. As accepted by Nadon, J. in the Burgess decision:
The Appeal Division, correctly in my view, at pages 7 and 8 of its reasons, sets out the question for determination:
...What is before the panel is whether it should exercise its discretion under paragraph 74(3)(b) of the Act. All of the circumstances of the case includes the respondent's initial situation, his new convictions and his situation since his stay.
[23] The question is whether the IAD considered all of the circumstances. I have concluded that the IAD's decision did not reflect that a re-assessment of the factors set out in Ribic Marida v. M.E.I. was carried out.
[24] The IAD's decision in this case focussed solely on the Applicant's alleged failure to comply with the terms and conditions of his stay. The IAD did not even mention any of the other factors that must go towards assessing "all the circumstances of the case." No mention or consideration was given to the Applicant's rehabilitation, to the fact that the Applicant had not committed any crimes or taken drugs since his deportation order, to his family situation, to the hardship that he would face if deported due to his mental illness, to his involvement in his church and his community or to his employment efforts. All of these were key factors in the determination that the Applicant should be granted a stay in the first place.
[25] The IAD, in its previous decision, clearly recognized that the Applicant's violations of the terms were due to his very low level of sophistication and difficulty in comprehension. No mention was made of this circumstance in the IAD's decision. As such, the IAD ignored relevant evidence. The IAD narrowly and incorrectly focussed on the microscopic details of the terms and conditions of the stay without looking at the whole picture of the Applicant's circumstances and by doing so committed a reviewable error.
ISSUE 2
The finding was patently unreasonable
[26] As discussed above, the standard of review to apply to overall finding of fact of the IAD to vacate the stay of execution on the deportation order is patent unreasonableness. For the reasons that follow, I am of the view that the IAD failed to meet this standard.
[27] The first finding of the IAD that contributed to their decision to vacate the stay was that the Applicant had failed to report to the IAD. Prior to his first oral review the Applicant had also failed to report on two other occasions. The IAD stated in its reasons that the Applicant had "claimed that he thought such a written report was unnecessary because the second oral review was originally scheduled to be heard in June 2001. He did not file a report although his initial testimony in examination-in-chief was that he did so."
[28] While it is true that the Applicant missed filing a report, it appears as though the IAD gave no weight to the mitigating circumstances that resulted in his failure.
[29] When he was asked again and reminded that he did not in fact report, he was able to offer a plausible explanation. He explained that the fact that the hearing date had changed had really confused him. He explained that he knew that at the hearing the terms changed and the reporting requirements changed and as a result he was confused as to his reporting requirements.
[30] The IAD did not say that they did not find the Applicant to be credible. They gave no explanation as to why they rejected his explanation. The IAD should have, at a minimum, explained why it rejected his explanation and gave it no weight in the decision.
[31] Another reason the IAD vacated his stay was due to the fact that "he did not provide any evidence from his treating physician." This was an incorrect finding. A review of the transcript clearly indicates that the Applicant brought with him his prescription for his medication for mental illness. He attempted to enter it into evidence but it was rejected by the IAD. While a prescription is not the same as a certificate or letter from a doctor, it is some evidence, independent of the Applicant's testimony, that he is under the treatment of a medical doctor for his mental illness.
[32] The apparent need for the Applicant to produce a doctor's letter was a more stringent requirement than imposed by the IAD in its 2000 review where the expectation was "to hear evidence of treatment for his mental illness". The IAD did not specify that he had to have a letter from his doctor. To expect him to extrapolate that requirement from the questioning he received at his last hearing is unreasonable. The Applicant testified that he was being treated by his doctor and that his treatment was his medication. He brought in his prescription as evidence. That evidence was incorrectly rejected.
CONCLUSION
[33] For the foregoing reasons I would allow this application for judicial review.
[34] Although the Applicant suggested the certification of a question as to whether there is a requirement under s. 74(3) of the Act to review all of the circumstances of a case upon a review of a stay, I am not satisfied that this is a proper question to be certified. This case involved very specific facts and did not turn on the proposed question.
"Judith A. Snider"
J.F.C.C.
Toronto, Ontario
December 5, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-5710-01
STYLE OF CAUSE: NEVILLE BEAUMONT
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, DECEMBER 4, 2002.
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: SNIDER J.
DATED: THURSDAY, DECEMBER 5, 2002
APPEARANCES BY: Mr. Osborne Barnwell
For the Applicant
Ms. Patricia MacPhee
For the Respondent
SOLICITORS OF RECORD:
Ferguson, Barnwell
Barristers & Solicitors
515 Consumers Road,
Suite 310
Toronto, Ontario
M2J 4Z2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20021205
Docket: IMM-5710-01
BETWEEN:
NEVILLE BEAUMONT
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER