Federal Court Decisions

Date: 20020412

Docket: IMM-5814-00

Neutral citation: 2002 FCT 424

Ottawa, Ontario, this 12th day of April, 2002

PRESENT:             THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

        CEDRIC SYLVESTER CHAMBERS

      Applicant

           - and -

                THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

    REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is the judicial review pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, of the decision of a panel of the Immigration and Refugee Board Appeal Division ("IAD"), dated November 6, 2000, wherein the IAD refused to re-open the applicant's appeal of a deportation order.

[2]                 The applicant seeks an order quashing the decision to refuse to re-open the appeal and an order remitting the matter back for a redetermination by a differently constituted panel.

Background

[3]                 The applicant is a citizen of Jamaica. The applicant was granted permanent residence in Canada on March 14, 1973. The applicant was married in 1973 and was separated in the late 1980s. The applicant has four adult children. As of August, 1999, the applicant had not had any contact with his wife and four children since 1989.

[4]                 The applicant has 18 convictions, the first on July 7, 1983 and the most recent on August 7, 1997. On November 20, 1998, the applicant was ordered deported as a result of his conviction on February 16, 1994 for trafficking in a narcotic (cocaine).

[5]                 The applicant appealed the deportation order.

[6]                 On August 24, 1999, the appeal was heard by a first panel of the IAD. The applicant attended and was represented by counsel.

[7]                 On October 27, 1999, the decision dismissing the appeal was rendered by the first IAD panel. Reasons were provided.

[8]                 On November 12, 1999, the applicant filed an application requesting leave for judicial review in the Federal Court Trial Division (Court file IMM-5490-99). At that time, the applicant was represented by new counsel.

[9]                 On November 30, 1999, the applicant's counsel wrote to the removal officer asking for the applicant's removal to be deferred because "Mr. Chambers is seriously ill and cannot care for himself."

[10]            On December 13, 1999, the applicant filed his application record at the Federal Court Trial Division, which raised the issue:

Did the tribunal err in law in dismissing the appeal because it failed completely to consider the human rights issues that arise from the deportation of a mentally ill person who is completely emotionally dependent on his family in the context of the issues of cruel and unusual treatment and section 7 life and security of the person interests?

[11]            On March 17, 2000, the applicant's leave application was dismissed by order of Mr. Justice Gibson.

[12]            On July 3, 2000, the applicant filed an application to re-open his appeal with the IAD on the grounds that new evidence had arisen which might lead the IAD to decide the case in his favour and alleged that the applicant was represented by incompetent counsel at the first IAD hearing which lead to a breach of natural justice.

[13]            The second panel of the IAD, in the order dated November 6, 2000, decided not to allow the applicant's application to re-open the appeal. This is the judicial review of the second IAD decision.

Applicant's Submission

[14]            The applicant submits that fresh evidence addressed one of the central concerns of the tribunal at first instance, namely that the applicant was in fact now diagnosed and being treated both for his alcoholism and for his mental illness.

[15]            The applicant submits that the tribunal created an obvious error in the characterization of the applicant's criminal record as being one where hiatus of three years was not unusual because the evidence was that the applicant has not committed offenses in four years and serious offenses in seven.

[16]            The applicant submits that the tribunal erred in applying the test. The tribunal considering an application to reopen is not to decide the issues; it is merely to determine whether or not there is evidence upon which a tribunal hearing the case might, upon consideration of the new evidence, allow the appeal. The applicant submits that the tribunal can weigh and assess evidence to a certain extent but should not engage in the weighing and assessing which would be undertaken by the tribunal at the full hearing.

Respondent's Submissions

[17]            The respondent submits that the standard of patent unreasonableness applies to the Appeal Divisions's finding of fact. The respondent submits that great deference should be given to the IAD as this matter is within its expertise.

[18]            The respondent submits that the test for re-opening requires that there is a reasonable possibility that new evidence could lead the Board to change its original decision. The panel can consider the new evidence and explain why it would not be sufficient so as to lead to a different result. The respondent submits that the IAD did not misapply the test for re-opening.

[19]            Issues

1.             Was it unreasonable for the IAD to conclude that the applicant was not unlikely, on a balance of probabilities, to re-offend?

2.             Did the IAD err in law in its assessment of the evidence?

3.             Did the IAD err in law in that it exceeded its jurisdiction by weighing and assessing evidence in a manner that was only appropriate at the full hearing?

[20]            Issue 1

Was it unreasonable for the IAD to conclude that the applicant was not unlikely, on a balance of probabilities, to re-offend?

The applicant had not re-offended for approximately four years. The Appeal Division, in its decision, said that he had not re-offended for three years. The Board made a finding that the applicant is not unlikely to re-offend. The only basis for this finding was the applicant's earlier criminal record. As noted above, the applicant has not re-offended for approximately four years. Also, the applicant now has the support of his father and lives with him, and is being treated for his illness and addiction to alcohol. I find that the IAD's finding that the applicant was not unlikely to re-offend again is a patently unreasonable finding in that the evidence simply does not support this conclusion.

[21]            Issue 2

Did the IAD err in law in its assessment of the evidence?

The IAD when assessing the evidence, found that there were "no details on how the applicant's father is able to monitor the applicant without living with him". The affidavit of the applicant's father clearly states that the father has insisted that the son come and live with him. This is an error by the IAD in the assessment of the evidence. The IAD also found that the applicant "did not have reliable family support, which is crucial to his recovery and avoidance of criminal activity". The applicant's father stated in his affidavit that since he had his son come and live with him, he took control of his son's life. The father also deposed that his son is now doing much better and that he makes sure he does not drink. He also ensures that his son takes his medication and goes to his psychiatrist. I am of the view that the IAD's finding that the applicant does not have reliable family support is a patently unreasonable finding based on the evidence.

[22]            If the IAD had not made the errors identified above, it might have come to a different conclusion as to whether to re-open the appeal. Since I do not know what decision the IAD might have arrived at had it not made the errors, the matter must be referred to a different panel of the IAD for reconsideration.

[23]            Because of my findings with respect to Issues 1 and 2, I need not deal with Issue 3.

[24]            Neither party wished to propose a serious question of general importance for my consideration.

ORDER

[25]            IT IS ORDERED that the decision of the IAD which refused to re-open the applicant's appeal is quashed and the matter shall be remitted to a different panel of the IAD for reconsideration.

                         "John A. O'Keefe"                 

J.F.C.C.                      

Ottawa, Ontario

April 12, 2002