Date: 200000824
Docket: IMM-487-00
BETWEEN:
SATBAL SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
REASONS FOR ORDER
SIMPSON, J.
[1] This application is for judicial review under s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision of the Immigration and Refugee Board (Appeal Division) dated January 20, 2000, wherein it allowed the application of the Minister of Citizenship and Immigration (the "Crown") to vacate a stay of a deportation order.
Chronology
| October 9, 1997 The Applicant was ordered deported to Malaysia as a result of convictions on two drug-related charges (the "Deportation Order"). |
| November 1997 The Applicant admitted using drugs during this time period. |
| May 1998 The Applicant received a positive result on a test for the use of cocaine. |
| June 29, 1998 The Appeal Division of the Immigration and Refugee Board (the "Board") heard the Applicant's appeal of the Deportation Order under s. 70(1)(b) of the Act. |
| July 22, 1998 The Board directed a stay of the Deportation Order (the "Stay"). |
| September 1998 The Applicant received a positive result on a drug test and his parole was revoked. |
| December 1998 The Crown brought an application under Rule 33 of the Immigration Appeal Division Rules to vacate the Stay. |
| May 13, 1999 The Crown's application was heard by the Board. The Applicant did not appear. |
| July 14, 1999 The Board issued a decision vacating the Stay. |
| July 29, 1999 The Applicant brought a motion to have the Crown's application re-opened. The motion was granted. |
| January 20, 2000 The Crown's application to vacate the Stay was heard again (the "Second Hearing"). |
| February 8, 2000 The Board vacated the Stay and dismissed the appeal of the Deportation Order (the "Decision"). |
The Facts
[2] The Applicant is a citizen of Malaysia. He arrived in Canada as a student in January 1980 and acquired permanent resident status in December 1983. He has three children who were born in Canada, but who currently live in Trinidad with their mother, who is divorced from the Applicant.
[3] The Applicant graduated from university in the 1980s and has worked in Canada as a businessman. He initially owned a vacuum cleaner sales franchise. Later, he worked in the construction and real estate industry, and most recently, he raises capital for Canadian technology companies.
[4] The Applicant states that he developed his drug addiction in the late 1980s. In February 1997, he was convicted in Toronto of trafficking in a narcotic and possession for the purpose of trafficking and he was sentenced to two years imprisonment for each offence. These convictions led to the Deportation Order of October 9, 1997.
[5] The Applicant appealed the Deportation Order to the Board. At the hearing on June 29, 1998, the Applicant testified about his remorse and about his rehabilitation from his drug addiction. In particular, he testified that he had last used drugs in November 1997, the year before the hearing. He did not mention the positive drug test in May 1998, only one month before the hearing. Board member E.W.A. Townshend, in reasons dated July 22, 1998, ruled the that the Deportation Order was valid in law, but exercised the Board's discretionary powers under section 70(1)(b) of the Act and stayed the Deportation Order. The Stay was granted on conditions, including a requirement that the Applicant refrain from using drugs and file reports giving current information about a variety of matters.
[6] On September 9, 1998, the Applicant's parole was revoked because of another positive drug test. In consequence, on December 15, 1998, the Crown brought a motion pursuant to Rule 33 of the Immigration Appeal Division Rules to vacate the Stay. The Crown alleged that the Applicant misled Board member Townshend by not revealing that he had tested positive for cocaine use in May 1998, just one month prior to his hearing. As well, the Applicant had not filed any of the required reports.
[7] The Crown's motion was heard by Board member Bernard Kalvin on May 13, 1999. However, on that date, the Applicant was in hospital and was unable to attend the hearing. The Board noted, in its decision of July 14, 1999, that if the Applicant's only failing had been a relapse into drug use, it would have refused the Crown's motion to vacate the Stay. However, the Board noted the Applicant's failure to be candid with Board member Townshend about the positive test in May 1998 and his failure to observe the reporting requirements, and the Board determined that the Applicant failed to report as required either because he did not take the requirement seriously or as a deliberate act of defiance. The Board therefore granted the Crown's motion and vacated the Stay.
[8] The Second Hearing was convened before Board member Kalvin on January 20, 2000. At that hearing, the Board heard the Applicant's explanations for his failure to comply with the terms of the Stay, and for his failure to mention his recent drug use at the hearing before Mr. Townshend. In addition, the Board heard the Applicant's testimony about his ongoing efforts to recover from his drug addiction, including his completion of a rehabilitation programme. The Applicant's psychiatrist, Dr. Chiarot, testified that the Applicant was trying hard to become drug-free, and other character evidence was led on the Applicant's behalf.
The Board's Decision
[9] The Board ruled that the Applicant was not credible when he said that he remembered "falling off the wagon" in November 1997, eight months prior to his hearing before Board member Townshend, but that he forgot about his drug use one month prior to the same hearing. Board member Kalvin found that the Applicant intended to mislead the Board respecting his recent drug use. The Board also rejected the Applicant's evidence that, shortly after his June 1998 hearing, he had sworn an affidavit disclosing his May 1998 drug use. In my view, this was a reasonable decision given that no such affidavit has to this date been produced.
[10] Further, the Board rejected as unpersuasive the Applicant's "various explanations" about why he failed to file reports and concluded that the Applicant simply chose to ignore the reporting requirement and that his conduct amounted to a breach of the Board's trust.
[11] Board member Kalvin concluded that parts of his earlier decision were still valid. In that regard, he said:
| Having reviewed the evidence and heard the testimony which was presented today and considered the submissions of both parties with respect to this re-opened application, I have not been persuaded that the decision which I rendered with respect to this application on May 13, 1999 should be changed. |
| ... |
| Having heard the evidence presented today, I find that the comments I made in my decision of May 13, 1999 are still applicable. At that time, I said the following: |
| I understand that Mr. Singh is battling a drug addiction and that he is having difficulty in that battle. If the only breach of the terms and conditions which were imposed upon him by this Board, was that he had begun to use cocaine again, then I would have been more inclined to look favourably on a continuation of the stay in this case. But what I find troubling in this case, is not so much the fact that Mr. Singh cannot shake his drug dependency, troubling as that is, but rather that Mr. Singh has breached the trust placed in his by this Board in that he was not candid with Member Townshend when he appeared on June 29, 1998, and because he has simply chosen to ignore the reporting conditions imposed upon him. Even if Mr. Singh had begun to use cocaine again, there is no reason why he could not have complied with the reporting conditions which were put on him when the Board exercised equitable discretion in his favour. Mr. Singh appears to be a wealthy, sophisticated, capable business person. His choosing to ignore the reporting conditions imposed upon him by this Board appears simply to be an act of defiance or an indication that he did not take seriously the decision handed down by Member Townshend in June 1998. |
The Applicant's Position
[12] The Applicant says that, in the Second Hearing, Board member Kalvin misconceived the parameters of his discretion. This is shown, it is submitted, by the fact that he focused inappropriately on the Applicant's misconduct relating to the earlier hearing and the terms of the Stay. The Applicant says that the Board was required by section 70(1)(b) of the Act to consider all the circumstances of the case and that the Decision makes it clear that the Board considered only the Crown's allegations about the Applicant's perjury and breaches of the terms of the Stay and not the evidence about his good character and his continuing efforts at rehabilitation.
The Issues
[13] Was the Board required to consider all the circumstances of the case in the Second Hearing, including both the Crown's allegations of breaches of the Stay and the Applicant's efforts to achieve rehabilitation?
[14] If a consideration of all the circumstances as described above was required, was it in fact undertaken by the Board in the Decision?
Discussion and Conclusion
[15] In his decision in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), Evans J. included this comment in the section of his decision which dealt with the adequacy of reasons (at para. 16):
| 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. |
[16] In my view, as the quotations from the Decision indicate, the Board clearly considered all the circumstances of the case. The fact that the Board focused on the perjury and breaches of the Board's order is entirely understandable given that those matters were the foundation for the Crown's motion to vacate the Stay. However, other matters relating to rehabilitation were not overlooked. Mr. Kalvin had considered them only seven months earlier and the Applicant's counsel acknowledged before me that nothing of substance had changed. In these circumstances, the Board's general statement indicating that all the evidence had been considered, combined with a reference to the earlier decision, is sufficient to satisfy me that all the circumstances were in fact considered.
[17] Since I have found that all the circumstances of the case were considered, I have found it unnecessary to decide whether the Board was required to consider all the circumstances.
Conclusion
[18] For all these reasons, the application will be dismissed.
Certification
[19] The Applicant posed the following question for certification (the "Question"):
| Is the Appeal Division required to consider afresh all the circumstances of the case under s. 70(1)(b) of the Act when determining to vacate a stay and dismiss an appeal under s. 74(3) of the Act "when no new and significant evidence has been presented by the person concerned"? |
[20] I have concluded that the Question will not be certified because I have decided this application on the basis that, regardless of whether he was required to do so, the Board member did take all the circumstances of the case into account. Accordingly, the answer to the Question would not dispose of the matter on appeal.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
August 24, 2000