Indexed As: Iamkhong v. Canada (Minister of Citizenship and Immigration) et al. Federal Court Noël, J. March 24, 2011.

Transcription

1 Suwalee Iamkhong (applicant) v. The Minister of Citizenship and Immigration and The Minister of Public Safety and Emergency Preparedness (respondents) (IMM ; 2011 FC 355) Indexed As: Iamkhong v. Canada (Minister of Citizenship and Immigration) et al. Federal Court Noël, J. March 24, Summary: The Immigration Appeal Division (IAD) confirmed that the applicant, a woman of Thai origin, was to be removed to Thailand, as serious criminality made her inadmissible to Canada under s. 36(1) of the Immigration and Refugee Protection Act. The criminal conviction resulted from the applicant's non-disclosure of her HIV-positive status to her husband at the time. She applied for judicial review. The Federal Court dismissed the application. The IAD noted all the relevant Ribic factors. Ultimately, the negative factors overruled the positive aspects. The IAD's conclusion that the circumstances of the case did not warrant humanitarian and compassionate relief was reasonable. The applicant's proposed question was not certified. Aliens - Topic 1746 Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons convicted of crime - [See Aliens - Topic ]. Aliens - Topic or removal order - Appeals or judicial review (incl. reopening) - The Immigration Appeal Division confirmed that the applicant was to be removed, as serious criminality made her inadmissible under s. 36(1) of the Immigration and Refugee Protection Act - The criminal conviction resulted from her non-disclosure of her HIV-positive status to her husband at the time - The Federal Court stated that "it is clear that immigration proceedings such as this one are not the forum to relitigate criminal convictions. The Court must accept the work of learned colleagues of the criminal courts and not introduce uncertainty by diminishing the impact of their rulings and going against legislative intent... The reason removal procedures have been engaged is that serious criminality is present, and that Parliament deems this important enough to warrant removal" - See paragraphs 33 and 34. The applicant sought judicial review of a decision of the Immigration Appeal Division (IAD), confirming that the applicant was to be removed - The Federal Court held that there was no basis in the applicant's argument that, in dealing with humanitarian and compassionate considerations in the context of s. 67(1)(c) of the Immigration and

2 Refugee Protection Act, the IAD fettered its discretion by relying on the "undue, undeserved or disproportionate" components of hardship derived from s. 25(1) - The nature of the discretion was the same - Not only was that supported by case law, but it was also a question of the internal coherence of statutes - "Surely, when Parliament uses 'humanitarian and compassionate grounds' in sections of the very same Act, the Court can presume Parliament's intent and purpose is to give these expressions the same meaning, as Parliament's coherence is presumed" - Further, the purposes of ss. 25(1) and 67(1)(c) were similar, namely, to relieve an applicant of a legal requirement of the Act or the Regulations - The IAD did not apply the wrong legal test - See paragraphs 37 to 39. The applicant was found to be inadmissible in light of her criminal convictions - The Immigration Appeal Division (IAD) confirmed the decision - In its reasons, the IAD did not present a separate section for the "Family and Community Support" criterion, a Ribic factor that it was required to analyze - The applicant argued that the IAD omitted to fully appreciate the humanitarian and compassionate grounds of the case - The Federal Court held that the IAD's assessment of hardship was reasonable - The IAD was not required to draft a point-by-point analysis of all the Ribic factors - "It would be incoherent for a reviewing Court to proceed to such a formalistic analysis of the Ribic factors without actually analyzing the IAD's reasons" - See paragraphs 41 to 59. or removal order - Appeals - Humanitarian and compassionate grounds (special relief) -The Immigration Appeal Division (IAD) confirmed that the applicant, a woman of Thai origin, was to be removed, as serious criminality made her inadmissible under s. 36(1) of the Immigration and Refugee Protection Act - The criminal conviction resulted from her non-disclosure of her HIV-positive status to her husband at the time - Availability of medicine in Thailand was a core finding of the IAD, as it was on that basis that the IAD found the applicant to not suffer undue, undeserved or disproportionate hardship if removed - The Federal Court held that the IAD's assessment of hardship as one of the Ribic factors was reasonable - It was reasonable for the IAD to conclude that the applicant's evidence lacked specificity and was not conclusive on the matter of availability and cost of the drugs - The IAD's findings on the availability of medication in Thailand was supported by important documentation, not least of which was a report from Médecins Sans Frontières - See paragraph 53. The applicant was found to be inadmissible in light of her criminal convictions that resulted from her non-disclosure of her HIV-positive status to her husband at the time - The Immigration Appeal Division (IAD) confirmed that the applicant was to be removed - The Federal Court held that remorse was reasonably considered by the IAD - "While the

3 Court warns against the IAD taking too negative a view of remorse, which may well be genuine, it cannot be said that remorse is determinative in this case. It seems as though the IAD focused on the breach of trust underlying the Applicant's criminal convictions and took a moral stance against it. This may not be the most tactful manner to address the issue of remorse; but the IAD's conclusion on remorse is not unreasonable, as it results from the IAD's appreciation of the Applicant's testimony as it arose before it" - See paragraph 60. or removal order - Appeals - Humanitarian and compassionate grounds (special relief) -The applicant requested to stay her removal for two to three years, so as to prove rehabilitation - The Federal Court held that the applicant could not take issue with the rehabilitation finding of the Immigration Appeal Division (IAD) - The IAD aptly noted that it was to analyze the possibility of rehabilitation, and not the evidence thereof; that the applicant was not a hardened criminal, and was unlikely to re-offend; and that she had taken steps with various AIDS-related organizations - Contrary to the applicant's representations, those were seen by the IAD as positive, and not neutral, factors - Hence, the court's intervention in regard to that factor was not required - See paragraphs 61 to 63. or removal order - Appeals - Humanitarian and compassionate grounds (special relief) -The applicant was found to be inadmissible in light of her criminal convictions that resulted from her non-disclosure of her HIV-positive status to her husband - The Immigration Appeal Division (IAD) confirmed that the applicant was to be removed - Establishment was the Ribic factor which was most unfavourable to the applicant - Despite her 15 years in Canada, she did not master any of Canada's official languages, was dependant on the state for support, and lacked formal education - The IAD found that the positive establishment factors were belated and did not outweigh the negative ones - The Federal Court found that the decision was reasonable - The considerations set out in s. 3 of the Immigration and Refugee Protection Act, of integration (both cultural and economic), the importance of Canada's official languages, as well as the health and safety of Canadians, were reflected in the IAD's appreciation of the applicant's establishment - See paragraphs 66 to 71. The applicant sought judicial review of a decision of the Immigration Appeal Division (IAD), confirming that the applicant was to be removed ("serious criminality" made her inadmissible) - The criminal conviction resulted from the applicant's non-disclosure of her HIV-positive status to her husband - The Federal Court emphasized the nature of the application for judicial review - "[I]t is not a de novo appeal. As such, it is not open for the Court to re-weigh the evidence or otherwise substitute itself to the decision-maker. While the Court does recognize some strong tones in the IAD's reasons, these did not

4 blind the IAD of its duties to fairly and meaningfully address the case before it. Surely, this is an emotionally charged case. Navigating through the evidence and humanitarian considerations is not an easy task, especially not in this case. However, there is nothing to indicate that the Applicant did not get a full, legally sound analysis of her case" - See paragraph 73. Aliens - Topic 4069 Practice - Judicial review and appeals - Certification of question of general importance by Federal Court - At issue on this judicial review proceeding was the duty of the Immigration Appeal Division (IAD) under s. 67(1) of the Immigration and Refugee Protection Act (IRPA) - The applicant suggested the following question for certification: "In considering hardship as a humanitarian and compassionate consideration under s.67(1) of IRPA, is the IAD limited to considering only hardship that it finds amounts to the level of 'undue, undeserved or disproportionate' or should it consider all hardship as per the test set out in Chirwa?" - The Federal Court did not certify the question - The proposed question would go against coherence, as well as clear guidance from the Supreme Court - Also, the court was not satisfied that the question would be determinative of the appeal - The IAD properly analyzed all the evidence before it and weighed it - See paragraphs 79 to 83. Statutes - Topic 2617 Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization (incl. presumption of coherence) - [See first Aliens - Topic ]. Cases Noticed: Chieu v. Canada (Minister of Citizenship and Immigration) (2002), 280 N.R. 268; 2002 SCC 3, appld. [para. 7]. Al Sagban v. Canada (Minister of Citizenship and Immigration) (2002), 280 N.R. 215; 2002 SCC 4, appld. [para. 7]. Ribic v. Minister of Employment and Immigration, [1985] I.A.B.D. No. 4, appld. [para. 7]. Bichari v. Canada (Minister of Citizenship and Immigration) (2010), 362 F.T.R. 7; 2010 FC 127, refd to. [para. 14]. Medovarski v. Canada (Ministre de la Citoyenneté et de l'immigration) (2005), 339 N.R. 1; 2005 SCC 51, refd to. [para. 20]. New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R. (2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 25]. Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 27]. Abdallah v. Canada (Minister of Citizenship and Immigration) et al., [2010] F.T.R. Uned. 1; 2010 FC 6, refd to. [para. 27]. Canada (Minister of Public Safety and Emergency Preparedness) v. Mendoza Reyes, [2009] F.T.R. Uned. 690; 2009 FC 1097, refd to. [para. 27]. Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 29].

5 Chirwa v. Canada (Minister of Citizenship and Immigration), [1970] I.A.B.D. No. 1, refd to. [para. 35]. Lim v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 884; 2002 FCT 956, refd to. [para. 36]. Rizvi v. Canada (Minister of Citizenship and Immigration) et al., [2009] F.T.R. Uned. 678; 2009 FC 463, refd to. [para. 36]. Paz v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 252; 2009 FC 412, refd to. [para. 36]. Delos Santos v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 409; 2010 FC 614, refd to. [para. 37]. Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 38] Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 38]. Barnash v. Canada (Minister of Citizenship and Immigration) (2009), 348 F.T.R. 145; 2009 FC 842, refd to. [para. 40]. Ivanov v. Canada (Minister of Citizenship and Immigration) (2007), 368 N.R. 380; 2007 FCA 315, refd to. [para. 42]. Canada (Minister of Citizenship and Immigration) v. Stephenson (2008), 322 F.T.R. 33; 2008 FC 82, refd to. [para. 42]. Vijayasingham v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] F.T.R. Uned. 253; 2010 FC 395, refd to. [para. 42]. Brace v. Canada (Minister of Public Safety and Emergency Preparedness), [2010] F.T.R. Uned. 374; 2010 FC 582, refd to. [para. 45]. Bichari v. Canada (Minister of Citizenship and Immigration) (2010), 362 F.T.R. 7; 2010 FC 127, refd to. [para. 52]. Kanagaratnam v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 168; 2009 FC 295, refd to. [para. 61]. Martinez-Soto v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 642; 2008 FC 883, refd to. [para. 61]. Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, refd to. [para. 78]. Statutes Noticed: Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 3 [para. 69]; sect. 63(3); sect. 64(1), sect. 64(2) [para. 4]; sect. 66, sect. 67(1)(c), sect. 68, sect. 69 [para. 6]. Authors and Works Noticed: Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp [para. 38]. Counsel: Aadil Mangolji, for the applicant; Lynn Lazaroff, for the respondent. Solicitors of Record:

6 Aadil Mangolji, Toronto, Ontario, for the applicant; Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the defendant. This application for judicial review was heard at Toronto, Ontario, on March 2, 2011, before Noël, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated March 24, Editor: E. Joanne Oley Application dismissed. Aliens - Topic 1746 Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons convicted of crime - The Immigration Appeal Division confirmed that the applicant was to be removed, as serious criminality made her inadmissible under s. 36(1) of the Immigration and Refugee Protection Act - The criminal conviction resulted from her nondisclosure of her HIV-positive status to her husband at the time - The Federal Court stated that "it is clear that immigration proceedings such as this one are not the forum to relitigate criminal convictions. The Court must accept the work of learned colleagues of the criminal courts and not introduce uncertainty by diminishing the impact of their rulings and going against legislative intent... The reason removal procedures have been engaged is that serious criminality is present, and that Parliament deems this important enough to warrant removal" - See paragraphs 33 and 34. Statutes - Topic 2617 Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Harmonization (incl. presumption of coherence) - The applicant sought judicial review of a decision of the Immigration Appeal Division, confirming that the applicant was to be removed - The Federal Court held that there was no basis in the applicant's argument that, in dealing with humanitarian and compassionate considerations in the context of s. 67(1)(c) of the Immigration and Refugee Protection Act, the IAD fettered its discretion by relying on the "undue, undeserved or disproportionate" components of hardship derived from s. 25(1) - The nature of the discretion was the same - Not only was that supported by case law, but it was also a question of the internal coherence of statutes - "Surely, when Parliament uses 'humanitarian and compassionate grounds' in sections of the very same Act, the Court can presume Parliament's intent and purpose is to give these expressions the same meaning, as Parliament's coherence is presumed" - Further, the purposes of ss. 25(1) and 67(1)(c) were similar, namely, to relieve an applicant of a legal requirement of the Act or the Regulations - The IAD did not apply the wrong legal test - See paragraphs 37 to 39.