Date: 20010626
Docket: IMM-2254-01
Neutral Citation Number: 2001 FCT 703
Between:
RICHARDSON N. SAYUNO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicant (D.o.B. November 6, 1976) came to Canada with his parents and sister in March 1994, at the age of 18 years. The parents have lived separately since about 1995. The applicant is the subject of a deportation order made pursuant to subsection 32(2) of the Immigration Act, signed on June 14, 2000. The present motion is for an order staying the execution of the deportation, or removal, order against the applicant pending the determination of his application for leave and judicial review, ordinarily a good idea. The grounds for the applicant's motion are stated to be in effect the usual, so-called tripartite test.
[2] Subsection 32(2) of the Act runs thus:
Where an adjudicator decides that a person who is the subject of inquiry is a permanent resident described in subsection 27(1), the adjudicator shall, subject to subsections (2.1) and 32.1(2), make a deportation order against that person.
According to the person who constituted the Immigration Appeal Division the applicant was ordered to be deported because of his criminality. She held:
The legality of the deportation order (***) was not challenged and is found valid in law.
"Therefore", she wrote, "this appeal is grounded in the discretionary jurisdiction of the Appeal Division; that based on all the circumstances of the case the appellant should not be removed from Canada."
[3] The following findings of the Appeal Division in this case are pertinent:
The Appellant has a significant criminal history in his six years in Canada. Much of this involves violence, with a total of six convictions for assault, assault causing bodily harm and assault with a weapon. The Appellant was landed in Canada together with his parents and sister in March 1994 at 18 years of age. His first conviction was entered just 15 months later. He was convicted on 11 July 1995 of assault causing bodily harm; on 21 November 1995 of mischief under $5000; and of assault on 25 January 1996. In February 1999, the Appellant was convicted of multiple charges: assault with a weapon; two charges of assault; and failing to comply with an undertaking. Then, just six months later, the Appellant was again convicted of assault, as well as of two charges of failure to comply with a recognizance. I find this criminal history is serious and must be weighed very heavily against the Appellant. It began very shortly after the Appellant arrived in Canada as a young adult, and continued to escalate with the most recent convictions in August 1999. The Appellant's criminality involves violence, including in one instance a knife to stab his victim. It also involves planned aggression, such as when he brought a knife to a location where he planned to confront his date's former boyfriend, a fact he admitted at the time of the incident, and to which he later plead [sic] guilty. Less than one year later, he was convicted of assault in a situation where he responded with physical violence to a passing verbal insult. During 1997, charges for uttering threats were disposed of with a peace bond being imposed. In another instance, this in 1999, the Appellant actively sought out his victim by going to the victim's place of employment. The victim, who did not know the Appellant, was the supervisor of the Appellant's wife. It was because of his wife's report to him that her supervisor had not allowed her into a training program that the Appellant went to find the supervisor. When the Appellant found the supervisor he grabbed him and held him against a wall with his arm against his throat until other staff pulled the Appellant off the supervisor. This is conduct that I find goes much beyond "immaturity" or "frustration in his relationship" which counsel asserts ought to mitigate the seriousness of the Appellant's criminal history. It is conduct which I find is not restricted to one situation, or one triggered event. I find these are not merely spontaneous reaction to a threat or provocation. The Appellant's actions have in several of these convictions required intention and a decision to act. I also find that the victims are not restricted to those who have engaged or provoked the appellant. The Appellant's stabbing victim and the Appellant did not know each other. The supervisor who [sic] the Appellant assaulted did not know who the Appellant was. I find these are circumstances of the Appellant's convictions which I weigh heavily against him. I also find that a number of the Appellant's assault convictions, including assault with a weapon, occurred within the context of a tumultuous relationship with the Appellant's wife Jackie Abraham Sayuno, who [sic] he married in the week prior to this appeal being heard. Yet I also note in the report of Dr. Fred Shane, more fully discussed below, that at 15 December 2000, the Appellant stated he planned to marry his children's mother Jackie Sayuno, at some point, but that no firm plans had been made. However a marriage ceremony took place in mid-January 2001, only one month later. A celebration of the event is planned for some time in the future. I find this marriage, at this stage just prior to this appeal, is, on a balance of probabilities, for the purpose of impressing the Appeal Division of the stability and importance of this relationship. This has been a volatile relationship from its beginning in 1997. Mrs. Sayuno's parents opposed the relationship. Mrs. Sayuno was then 16 years of age, and the Appellant was nearly 21 years of age. Mrs. Sayuno was pregnant within three months or so of their first dating. They have been together, on and off, since the beginning of their relationship, which has been characterised by many fights, break-ups and assaults both physical and verbal. The couple has sometimes lived together, and sometimes lived apart. They were living apart, among other times, in June 1998 and July 1999. They have been provided information on domestic violence, and the Appellant took a course on Domestic Violence in the summer of 2000. I find that the evidence proves, on a balance of probabilities, that both parties fuel the flames of their marital discord, even while responsibility for the physical violence lies with the Appellant. I find that this is a fundamentally dysfunctional relationship, which in November 2000, resulted in the birth of their second child. I weigh the Appellant's continued involvement in this relationship, in the absence of evidence of positive change or counselling on the part of both parties to the marriage, against the Appellant.
[4] Whilst it is trite law that, with some exceptions, the Minister is obliged to execute deportation orders with diligence and dispatch, the circumstances of this applicant seem not to invoke those exceptions. The applicant has imported into Canada a temperament of criminality and violence which we do not need here. Despite the applicant's averrals, this Court finds that the contending lawyers appearing on this case before the Appeal Division made no mutual recommendations such as are described in paragraph 75 or again in paragraph 83 of the applicant's affidavit affirmed on June 19, 2001. Nor was any evidence of irreparable harm adduced before this Court. The balance of convenience appears to favour the Minister. Giving due consideration to the best interests of the children, the Court believes that such would likely be better accomplished in their father's long-term absence from their lives, because of his frequent criminal misconduct. This Court adopts and ratifies the Minister's counsel's representations expressed at the hearing. The Court finds that the Immigration Appeal Division made no reviewable error.
[5] In the result the application is dismissed and the deportation order dated June 14, 2000 is confirmed.
"F. C. Muldoon"
Judge
Winnipeg, Manitoba
June 26, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-2254-01
STYLE OF CAUSE: Richardson N. Sayuno v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: June 25, 2001
REASONS FOR ORDER OF
THE HONOURABLE MR. JUSTICE MULDOON
DATED JUNE 26, 2001
APPEARANCES:
Mark Kantor for the Applicant
Jessica Cogan
Department of Justice
301 - 310 Broadway
Winnipeg, MB R3C 0S6 for the Respondent
SOLICITORS OF RECORD:
Gindin, Wolson, Simmonds
1200 - 363 Broadway
Winnipeg, MB R3C 3N9 for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent