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CHAPTER 99. DISCRETIONARY JURISDICTION9.1 INTRODUCTIONGenerally, an appeal against a removal order does not involve a challenge to its legal validity. In the usual case, the appeal is based on the discretionary jurisdiction of the Appeal Division. An appeal based on discretionary jurisdiction requires "the exercising of a special or extraordinary power which must be applied objectively, dispassionately and in a bona fide manner after carefully considering relevant factors".1 Discretionary jurisdiction is not to be confused with equitable jurisdiction involving the application of equitable doctrines such as "clean hands".2 Discretionary jurisdiction is a statutory power properly exercised where it is bona fide, uninfluenced by irrelevant considerations, and where it is not arbitrary or illegal.3 Where a removal order is made against a permanent resident or person in lawful possession of a valid returning resident permit, the appeal may be brought under paragraph 70(1)(b) of the Immigration Act (the Act). In that case, the Appeal Division is required to examine all the circumstances of the case in the exercise of its discretionary jurisdiction and to decide whether or not the person (the "appellant") should be removed from Canada. Where a removal order is made against a person who has been determined to be a Convention refugee under the Act or the Immigration Regulations, 1978, (the "Regulations") but who is not a permanent resident or a person who seeks landing or entry and is in possession, at the relevant time, of a valid immigrant visa or valid visitor's visa, as the case may be, the appeal may be brought under paragraph 70(3)(b) of the Act. In such a case, the Appeal Division is required to examine the compassionate or humanitarian considerations in the exercise of its discretionary jurisdiction and to decide whether or not the appellant should be removed from Canada.4 In general, the rights of appeal of a permanent resident are different from, and broader than, those of a person in possession of a valid visa.5 The cases that are decided under the Appeal Division's discretionary jurisdiction typically involve criminality, misrepresentation, or failure to comply with terms and conditions of landing. In any of these cases, where the Appeal Division exercises its discretionary jurisdiction in favour of the appellant, it may, pursuant to subsection 70(3) of the Act, either allow the appeal and quash the removal order or it may direct that the execution of the removal order be stayed. Conversely, where the Appeal Division exercises its discretionary jurisdiction against the appellant, it may, pursuant to the same statutory authority, dismiss the appeal. The Appeal Division may exercise its discretionary jurisdiction on an individual basis, that is, differently for each person who is affected by the disposition of the appeal. For example, in one case where the appellant, his wife and their three children were ordered removed from Canada after having been granted permanent residence, by reason of the appellant's misrepresentation, the Appeal Division found that the wife and children had done nothing wrong and were "innocent victims of the folly of [the appellant]" and that they were well established in Canada. While acknowledging the objective of family unity, the Appeal Division held that there are limits to the extent to which that objective may override the need to maintain the integrity of the immigration system. Accordingly, the Appeal Division exercised its discretionary jurisdiction in favour of the wife and children, but not in favour of the appellant.6 9.2 ALL THE CIRCUMSTANCES OF THE CASE: PARAGRAPH 70(1)(b)The Appeal Division has held that the phrase "all the circumstances of the case" is not unconstitutionally vague. In considering all the circumstances, the Appeal Division exercises its discretion within the statutory context. The nature of the task the Appeal Division performs under paragraph 70(1)(b) of the Act requires a very broad grant of discretion. The provision contemplates the realization of a valid social objective, namely, relief from the hardship that may be caused by the pure operation of the law relating to removal. In the words of the Appeal Division: "The interplay of individual and social interests is complex, and is particular to the circumstances of the individual appellant. In these cases there are no generic tests equally applicable to all appellants which might then justify a more detailed and less flexible grant of discretion."7 The leading case under paragraph 70(1)(b) is Ribic. 8 Recently, the Supreme Court of Canada issued its decisions in Chieu 9 and Al Sagban. 10 In overturning the decisions of the Federal Court of Appeal11 in those cases, the Supreme Court of Canada held that the Appeal Division is entitled to consider the factor of potential foreign hardship when the Appeal Division exercises its discretionary jurisdiction under paragraph 70(1)(b) of the Act, provided that the likely country of removal has been established by the appellant on a balance of probabilities. The Supreme Court stated that the factors set out in Ribic 12 remain the proper ones for the IAD to consider during an appeal under paragraph 70(1)(b) In that case, the Immigration Appeal Board set out factors to be considered in the exercise of its discretionary discretion. These factors were as follows:
These factors are not exhaustive and the way they are applied and the weight they are given may vary according to the particular circumstances of the case.13 In the words of the Appeal Division:
The language of paragraph 70(1)(b), "all the circumstances of the case," contemplates not only consideration of the appellant's circumstances, but also consideration of the appellant's case. It puts the appellant in his broader context and brings into play the good of society, as well as that of the appellant. Paragraph 70(1)(b) requires that social considerations be taken into account, together with every extenuating circumstance that can be presented in favour of the appellant.15 The language of the section is also open-ended: "the circumstances of the case which the Appeal Division must consider are not limited, it must consider all the circumstances of the case, not just some of them."16 9.2.1 Nature, Gravity and Pattern of OffencesGenerally, serious offences that involve, for example, the use of violence and form a pattern of criminal conduct will weigh heavily against an appellant. Conversely, minor offences that do not involve the use of violence and are of an isolated nature will weigh less heavily against an appellant. In relation to its examination of the nature, gravity and pattern of offences, and its assessment of the risk of the appellant's reoffending, the Appeal Division will consider evidence of the appellant's rehabilitation as illustrated in section 9.2.2. The appellant's entire criminal record may be taken into consideration on an appeal from a removal order. In one case, however, the Appeal Division gave little weight to offences the appellant had committed when a juvenile as they were not of particular gravity in themselves and it was not likely that they would have led to the issuance of a removal order; moreover, they were not related to the major offence which had given rise to the appeal before the Appeal Division.17 The time of commission of the criminal offence is a neutral fact even where it was committed shortly after the appellant's arrival in Canada. A serious offence is serious wherever committed according to the Federal Court-Trial Division in Pushpanathan. 18 9.2.1.1 Health, Safety and Good Order of Canadian SocietyIn exercising its discretionary jurisdiction, the Appeal Division has regard to the objective in section 3(i) of the Act which is "to maintain and protect the health, safety and good order of Canadian society". This objective is taken into consideration in examining the nature, gravity and pattern of the crime or crimes for which the appellant has been convicted and ordered removed from Canada, as well as the degree to which the appellant has been successful in rehabilitating himself or herself (see section 9.2.2.). In Furtado, 19 the Appeal Division concluded that, "maintaining and protecting the good order of society includes the removal or exclusion of persons whose activities work against peaceful harmony under constituted authority in Canada. The good order of Canadian society is inextricably linked to the rule of law in general and not just obeying the Criminal Code." In this particular case, the panel found that "wanted repeated violations of the criminal law by an individual, irrespective of the seriousness of the offences involved, undermines the rule of law, and, ipso facto, undermines the good order of Canadian society." In the case of an appellant who had been convicted of possession of cocaine for the purpose of trafficking, for example, the Immigration Appeal Board stated that bearing in mind its role as guardian of the public interest and its primary obligation to protect the public, the evidence was inadequate to support the conclusion that the appellant should not be removed from Canada.20 As indicated above, when dealing with a specific case, the Appeal Division considers the gravity of the offences for which the appellant has been convicted, as well as the appellant's overall pattern of conduct. Where there are serious offences involved, but they are isolated incidents arising in extenuating circumstances, the Appeal Division may grant discretionary relief. Thus, in one case, the Appeal Division quashed the removal order against an appellant who had been convicted of sexual assault and incest where there were overwhelming extenuating circumstances and the appellant did not pose a threat to society.21 Likewise, in another case where the appellant had been convicted twice of aggravated assault, the Appeal Division took into account the fact that the offences were isolated events, not indicative of the appellant's normal character and conduct, and that there were no other convictions indicating that the appellant had a basically criminal disposition.22 Similarly, where the appellant's criminal involvement was serious, but brief and behind him, the Appeal Division concluded that the appellant was rehabilitated and posed little risk to the Canadian public. On that basis, the removal order was stayed.23 By contrast, where serious offences and a pattern of criminal conduct are involved, the Appeal Division has refused to grant discretionary relief. Thus, for example, in a case where the appellant's mother and sister resided in Canada and the appellant himself had lived here since the age of three, the majority of the Immigration Appeal Board panel weighed the series of convictions against the appellant, his years of drug and alcohol abuse, his failed attempts at rehabilitation and his broken relationships, together with the need to protect other individuals in society, and concluded that protection of the Canadian public outweighed the appellant's wanting another opportunity to demonstrate that he could obey the law.24 In another case, taking into account as one of all the circumstances the fact that the appellant had abused the Canadian judicial and penitentiary systems by deliberately committing criminal offences to avoid the execution of Canada's immigration laws, the Immigration Appeal Board found that the appellant had failed to show sufficient reason why he should not be removed from Canada.25 In a case where the decision had been made on three occasions to allow the appellant to remain in Canada notwithstanding his criminal convictions, the Appeal Division concluded that by the appellant's own conduct, he had shown himself to pose a danger to the safety and good order of Canadian society.26 In another case, the Appeal Division found insufficient positive factors in the appellant's favour to offset the negative factors against him. The negative factors included the seriousness of the offences of which he had been convicted, namely sexual assault and sexual interference involving children; the abuse of a position of trust involved in the commission of the offences; the impossibility of isolating the appellant from, or monitoring his contact with, children; and the continued risk to children.27 The Appeal Division does not exceed its jurisdiction when it considers the question of public safety where the Minister has not issued a danger opinion under subsection 70(5) of the Act.28 However, it may be a reviewable error for the Appeal Division to ignore the fact that a danger opinion was not issued.29 9.2.1.2 Circumstances Surrounding Conviction and SentencingThe mandate of the Appeal Division in hearing an appeal from a removal order is not to retry the offence of which the appellant has been convicted30. In deciding the case, the Appeal Division does not turn its mind to the sufficiency of the sentence; nor does it exact a greater penalty through removal. It examines the circumstances surrounding the offence - not for the purpose of imposing punishment, but rather for the purpose of truly assessing all the circumstances of the case.31 In considering the gravity of a sentence the panel should consider the evidence in the record to determine whether the sentence in the case was longer or shorter than sentennces imposed in other cases involving similar offences.32 Further, the length of the sentence that is imposed is not the only criterion relevant to assessing the serious of an offence.33 In exercising its discretionary discretion in one case involving an appeal by a Convention refugee, the Appeal Division considered whether or not the removal of the appellant would be disproportionate to the harm the appellant had caused in violating the Act. 34 In examining the circumstances of the offence or offences, the Appeal Division may consider the judge's comments on sentencing, as well as the length of sentence imposed on the appellant. Where appropriate, the Appeal Division has examined the circumstances surrounding both conviction and sentencing. In one such case involving a Convention refugee, in allowing the appeal under compassionate or humanitarian considerations, the Appeal Division found it conceivable, having regard to the appellant's addiction, his dependency on persons who gave him the drugs he needed, and the complicated circumstances at the relevant time, that the appellant may have been convicted of an offence he did not commit. While this factor had no bearing on the legal validity of the removal order, it weighed in the appellant's favour in the Appeal Division's exercise of its discretionary jurisdiction.35 In one case where a removal order had been issued against an appellant on the basis of a conviction for sexual interference with his 12-year-old stepson, the Appeal Division examined and found somewhat ambiguous the circumstances surrounding the conviction; the stepson had admitted lying to the court about the appellant's having molested him a number of times, but the stepson's testimony was not explored since the appellant then pleaded guilty following a recess in the proceedings.36 9.2.1.3. Outstanding Criminal ChargesHaving regard to the presumption of innocence of an accused person, the general rule is that the Appeal Division may not consider outstanding criminal charges in exercising its discretionary jurisdiction. For example, in one case where the Immigration Appeal Board attempted, in its reasons, to base its decision only on evidence unrelated to the existence of outstanding criminal charges against the appellant, but referred to those charges in the last paragraph of its reasons, the Federal Court of Appeal found it unfair to the appellant and referred the matter back to the Board for a rehearing.37 In Bertold, 38 the Federal Court-Trial Division concluded that evidence with repect to outstanding foreign criminal charges should not have been admitted by the Appeal Division panel as they could not be used to impugn the appellant's character or credibility. As a departure from the general rule, however, it may be permissible, on very special facts, for the Appeal Division to take outstanding charges into account as one of all the circumstances of the case. The issue of outstanding criminal charges usually arises as a result of the appellant's referring to them in testifying at the hearing. In one case, for example, the Appeal Division took into consideration an incident that gave rise to the appellant's being charged with, but not yet convicted of, a number of offences that the appellant admitted having committed. The circumstances of the incident had been adduced during direct examination of the appellant and of other witnesses who testified on behalf of the appellant and counsel for the appellant had submitted that the appellant wanted to be open with the Appeal Division and to provide a complete record of his criminal activities by making the Appeal Division aware of the charges.39 9.2.1.4. Victim-Impact EvidenceUnder paragraph 69.4(3)(c) of the Act, the Appeal Division has discretion to determine the admissibility and relevance of evidence. This discretion extends to the admissibility of victim-impact evidence where the Appeal Division takes into account the prejudicial effect on the appellant and the probative value of such evidence. In one case where the Appeal Division had ruled inadmissible testimony concerning the impact of the second-degree murder committed by the appellant, on the basis that it would have no probative value, the Federal Court-Trial Division found that the Appeal Division had acted within its jurisdiction and that the exercise of its discretion had not been unreasonable. The Appeal Division had been cognizant of the serious nature of the crime and the fact that the victim had several children.40 In another case where the appellant had been convicted of manslaughter and the respondent had attempted to introduce victim-impact evidence, the Appeal Division held that such evidence was inadmissible. The majority stated that the evidence was inadmissible where it was produced only to demonstrate emotional trauma caused by the appellant's conduct. The purpose of deportation was not to impose further punishment. Victim-impact evidence is properly considered by a judge upon sentencing.41 In other cases, however, the Appeal Division has admitted victim-impact evidence, for example from members of the victim's family, where the appellant had been convicted of manslaughter in the death of his wife.42 In another case, where the appellant had been convicted of aggravated assault on his wife, the Appeal Division allowed the wife to testify about how the assault had affected her and her two sons.43 In a case where the appellant had been convicted of aggravated assault while another member of his gang shot and killed the victim, the Appeal Division admitted letters from members of the victim's family which were tendered as victim-impact statements. However, the Appeal Division gave little weight to the letters: one of the letters focussed on the impact of the victim's death, for which the appellant was not responsible; the other letter related to events leading up to the victim's death and it had been written for the purpose of objecting to the appellant's release on full parole.44 9.2.2 Rehabilitation9.2.2.1 Burden of ProofThe onus in on the appellant to prove his or her rehabilitation on a balance of probabilities. Moreover, where the offences of which the appellant has been convicted are serious, the appellant is required to present compelling evidence of rehabilitation.45 Thus, where the appellant's offence is of a serious nature and the appellant shows a lack of remorse, these factors may outweigh evidence of the appellant's establishment in Canada and the appellant's claim of being rehabilitated.46 On a review of a stay of execution of a removal order, the Appeal Division is required to consider the additional circumstances of the appellant's (the respondent's) conduct while under the stay.47 The Appeal Division has held that where an appellant whose removal order was once stayed commits serious offences during the stay, compelling evidence of rehabilitation or of a strong potential for rehabilitation must be presented to justify an extension of the stay.48 9.2.2.2 Assessment of RiskIn assessing the risk an appellant poses to Canadian society, the Appeal Division takes into account evidence such as comments by judges on sentencing and by members of the National Parole Board in their reasons for decision, as well as reports by parole officers, psychologists and psychiatrists.49 In making the assessment, the Appeal Division has regard to the societal interests set out in section 9.2.1.1. The assessment of risk raises three important issues: the seriousness of the criminal conduct (canvassed in section 9.2.1.); the degree to which the appellant has demonstrated rehabilitation; and the support system available to the appellant (addressed in section 9.2.5.). The last two issues are related to the likelihood of the appellant's reoffending.50 Thus, for example, in one case, citing its responsibility for protecting the health, safety and good order of Canadian society and having regard to the few positive factors in the appellant's favour, the seriousness of the offences involved and, in particular, the appellant's lack of remorse and continuing membership in a gang, indicating little likelihood of rehabilitation, the Appeal Division determined that the appellant was not entitled to discretionary relief.51 In another case, where the appellant had been ordered removed from Canada as a result of convictions for assault, sexual assault, and sexual assault with a weapon, the Federal Court found that the Appeal Division had clearly had regard to all the circumstances of the case. The majority of the Appeal Division had found the appellant to be a danger to society: she had not rehabilitated herself; she expressed no remorse for the offences she had committed; and the only impediment to her reoffending might be her physical disability. On that basis, the Appeal Division dismissed the appeal.52 9.2.2.3. Indicia of RehabilitationThe indicia of rehabilitation include "credible expressions of remorse, articulation of genuine understanding as to the nature and consequences of criminal behaviour and demonstrable efforts to address the factors that give rise to such behaviour".53 9.2.2.3.1. Remorse and Understanding of Nature and Consequences of ConductIn an appeal of a removal order resulting from a conviction for sexual assault, the Appeal Division extensively canvassed the issue of remorse. It noted that remorse "envisages more than a simple show of acknowledgement and regret for the offending deed." The panel set out a number of non-exhaustive indicators of remorse in cases such as the one before it: whether the appellant has personally accepted what he has done is wrong; the appellant's conduct and demeanor at the appeal hearing; and the appellant undertaking to make personal commitments to correct his offending behaviour and to take meaningful steps at making reparations to either the victim and/or society.54 Generally, where an appellant expresses remorse for criminal conduct and the Appeal Division finds the expression of remorse credible, that factor will be considered to the appellant's advantage. Where, however, the Appeal Division finds the expression of remorse to be lacking in credibility, that factor generally will be considered to the detriment of the appellant. Thus, for example, in one case where the appellant had been convicted of sexual assault on his stepdaughter and the Appeal Division found that the appellant only acknowledged a problem out of expediency; his protestations of remorse appeared begrudging and rang hollow; and he did not undergo treatment, it concluded that the appellant was basically an untreated offender and had not demonstrated an appreciable degree of rehabilitation.55 In the case of an appellant who had pleaded guilty to forcible confinement of, and assault with a weapon on, his common-law wife, the Appeal Division dismissed the appeal. In its view, the appellant's attempt at the hearing to minimize or deny the extent of his involvement amounted to a form of denial, indicating that he had not come to terms with his criminal conduct. There was no evidence that he was remorseful and the Appeal Division was not satisfied that he would not commit domestic violence in the future.56 The Appeal Division dismissed an appeal where the appellant had been convicted of sexual assault on an eight-year-old child whom he abused for a period of four years. Based on the evidence, the Appeal Division found that the appellant showed no remorse and that he was an untreated sexual offender who posed a high risk of reoffending.57 The mere passage of time without the appellant's having further convictions, together with marked changes in the appellant's lifestyle, will not necessarily be viewed as persuasive evidence that the appellant is in control of the problems which caused him to react violently on previous occasions, particularly where the appellant has expressed no remorse for his criminal conduct and has not taken any anger management courses or undergone counselling.58 The Federal Court-Trial Division upheld the exercise of the Appeal Division's discretionary jurisdiction in one case where the Appeal Division had considered the appellant's attitude. In the view of the Court, the Appeal Division had considered all the relevant circumstances and what the Appeal Division had characterized as the appellant's "obnoxious" attitude at the hearing was but one of the factors taken into consideration.59 9.2.2.3.2 Demonstrable Efforts to become RehabilitatedIn support of a claim of rehabilitation, psychological, psychiatric or medical evidence is often filed. In general, as part of its assessment of rehabilitation and the risk of the appellant's reoffending, the Appeal Division views as favourable to the appellant's case the appellant's understanding of, and efforts made to address, any underlying factors that have contributed to the past criminal conduct. Thus, where alcohol or drug abuse has played a role in such conduct, for example, it will tend to weigh in favour of the appellant that he or she has sought and received treatment for, and abstained from, substance abuse. In one case where the appellant had been convicted of manslaughter in circumstances where alcohol was involved, the Appeal Division found that the appellant had successfully rehabilitated himself as, among other things, he had abstained from consuming alcohol for five years.60 However, in another case where the appellant had been convicted of manslaughter for killing his lover with an axe during a psychotic episode brought on by heavy drinking, the Appeal Division decided against granting discretionary relief after considering the appellant's particular circumstances. The offence was out of character for the appellant, but the sentencing judge and the National Parole Board were concerned about a possible reoccurrence should the appellant, an alcoholic, fail to abstain from alcohol. The appellant did give up drinking, but suffered a relapse on one occasion while on parole. In the opinion of the psychologist who was treating the appellant, the appellant was not likely to suffer another relapse, and for the psychosis to develop again, further long-term, chronic alcohol abuse would be required. However, the Appeal Division was not satisfied that the relapse was an isolated event. There was a nexus between the appellant's alcoholism and the potential for the commission of further offences. The extremely serious nature of the offence, the circumstances in which it occurred and the appellant's subsequent relapse, together with the circumstances and precipitating factors, supported a conclusion of serious risk of serious harm to the community in the event of the appellant's reoffending.61 The Appeal Division quashed the removal order against an appellant who had been landed in Canada shortly after his birth, the youngest of six children, and who later in life had been convicted of assault causing bodily harm and of conspiracy to traffic in cocaine, in which his three brothers had been co-conspirators. As a result of the charges, the appellant stopped abusing alcohol and cocaine. The Appeal Division relied on a psychological assessment indicating that the appellant posed a low risk of recidivism and balanced all of the factors, including the length of time the appellant had lived in Canada and the support available to him in the community, to find in favour of the appellant.62 In the case of an appellant who had been ordered removed from Canada on the basis of his criminal record consisting of 22 prior convictions, including narcotics convictions, the Appeal Division found that the appellant, who claimed to have committed crimes to support his drug habit, had not taken adequate steps to deal with this addiction. Therefore, he had not rehabilitated himself and he continued to be a risk.63 Even where the Appeal Division concludes that an appellant is unlikely to reoffend, if it finds that the appellant has not adequately addressed the issue of a drug dependency and that he has not taken the necessary steps to stabilize his life through work or the acquisition of job skills, the Appeal Division may only be prepared to stay the execution of the removal order against the appellant and to impose terms and conditions on the appellant's continued stay in Canada.64 Where an appellant suffers from psychiatric illness that predisposes the appellant to commit criminal offences, it is likely to weigh in the appellant's favour that the appellant is being treated and taking medication to control the symptoms of the illness. Thus, for example, in one case where the appellant, a Convention refugee, was ordered removed from Canada for having been convicted of mischief, the Appeal Division took into account, as part of the compassionate or humanitarian considerations, the fact that the appellant, who suffered from manic depression, had committed the offence while off medication because of side effects, but subsequently changed medication.65 In contrast, where the appellant refused to accept psychiatric help and necessary medication and was likely to return to a life of crime without medical intervention, the Appeal Division found that the appellant posed a serious danger to society.66 In another case, the Appeal Division took into consideration, in the case of a mentally ill appellant convicted, among other offences, of assault on staff while he was in a psychiatric facility and objecting to taking medication, the fact that the appellant's father sought permanent guardianship of his son to ensure his son's continued care in a long-term group home that would assist in his medical treatment.67 The Federal Court of Appeal found that an appellant who resided in Canada since early childhood, had no establishment outside of Canada and suffered from chronic paranoid schizophrenia did not have an absolute right to remain in Canada. The appellant in that case, had a record of prior assaults and medication was not able to control his mental illness. The Appeal Division had concluded there was a very high probability that the appellant would re-offend and the offence would involve violence.68 9.2.3 Establishment in CanadaAs a general principle, it tends to weigh in the appellant's favour that the appellant has resided for a significant period of time, and become firmly established, in Canada. Conversely, a short period of residence in, and tenuous connection with, Canada will tend to weigh against the appellant. Factors of relevance are generally: the "length of residence in Canada; the age at which one comes to Canada; length of residence elsewhere; frequency of trips abroad and the quality of contacts with people there; where one is educated, particularly in adolescence and later years; where one's immediate family is; where one's nuclear family lives and the ties that members of the nuclear family have with the local community; where the individual lives; where his friends are; the existence of professional or employment qualifications which tie one to a place, and the existence of employment contracts." 69 Admission to Canada at an early age and a long period of residence in the country, while factors to be taken into account, are not cause for the automatic granting of discretionary relief. All the relevant factors must be considered. Faced with an appellant who had a serious criminal record, the Immigration Appeal Board decided against granting relief in view of its fundamental responsibility to protect Canadian society.70 While the accumulation of property may be one factor to consider in all the circumstances of the case, particularly in assessing the hardship that may arise from removal, it does not outweigh all the other factors that are relevant in determining establishment.71 Being imprisoned nearly the entire time72 or failing to achieve anything despite having lived in Canada for a significant period of time may weigh against the appellant, 73 as may failure to find employment, develop close family relationships, and accept responsibility for the care and support of a child.74 Having no family in Canada and not becoming established in the country despite working at various jobs will not assist the appellant either.75 Where the appellant's lack of establishment is directly relates to his mental disability, the absence of standard indicia of establishment is therefore understandable and should not be used negatively against the appellant. The appellant's efforts to establish, taking into account his disability, are, nevertheless relevant. In this case, the panel considered the appellant's efforts to establish himself in light of how he has coped with his disability and how he has responded to the support that has been offered to him.76 9.2.4 Family Members in CanadaHaving family members in Canada is not in and of itself sufficient to justify the granting of special relief; however, significant dislocation to family members as a result of an appellant's removal from Canada is generally viewed as a positive factor in an appellant's case. Thus, the fact of being successfully established in Canada and having a child who is a Canadian citizen in need of medical care that is provided free of cost in Canada are circumstances that may weigh in the appellant's favour.77 The Immigration Appeal Board has held that having Canadian-born children is just one factor to be considered in all the circumstances of the case.78 The Supreme Court of Canada in Baker 79 considered the situation of a woman with Canadian-born, dependent children ordered deported. She was denied an exemption by an immigration officer, based on humanitarian and compassionate considerations under subsection 114 of the Act, from the requirement that an application for permanent residence be made from outside Canada. In considering the certified question,80 the Court concluded that "the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children's interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable". Based on the Supreme Court's decision in Baker, it appears that the Appeal Division in exercising discretionary relief under both paragraphs 70(1)(b) and 70(3)(b) of the Act, should give serious consideration to the best interests of the appellant's children.81 In assessing the "best interests" of an appellant's child, the Appeal Division considered that the appellant was not residing with the child, the other parent (the child's mother) was the primary care giver and that the child was not financially or otherwise dependent on the appellant. Also considered was the frequency and nature of the appellant's visits with the child as well as the emotional attachment between the child and the appellant.82 In another case, the Appeal Division determined that it was in the best interests of the appellant's baby daughter that she be brought up by both parents. However, this was premised upon the appellant's rehabilitation, as it was not in the child's best interests to have an alcoholic father who is subject to frequent incarceration because of criminality actively involved in the child's life.83 Another factor that may be taken into account to the benefit of the appellant is having a parent in Canada who is in need of care84 or parents in need of the financial support provided by the appellant.85 In one case, however, where the appellant had misrepresented her marital status and had both a Canadian-born child, and a parent dependent on her for assistance in everyday activities, the Appeal Division found that there were insufficient grounds to warrant the granting of discretionary relief. Concerning the dependent parent, the Appeal Division noted that she had family members other than the appellant in Canada who could assist her.86 9.2.5 Family and Community SupportIn addressing the issue of rehabilitation discussed in section 9.2.2., and as part of its assessment of the likelihood of the appellant's reoffending, the Appeal Division considers evidence of support from family, friends and the community that is available to the appellant. Evidence of strong support is generally viewed as a factor in the appellant's favour. Therefore, it is usually to the appellant's advantage that family members, friends and members of the appellant's community come forward to testify at the appellant's hearing. Where there is no such show of support and no reasonable explanation given, the Appeal Division may draw an inference adverse to the appellant's case.87 In one case where an appellant had been convicted of possession of heroin for the purposes of trafficking, and of possession of cocaine, the Appeal Division took into consideration, among other things, the fact that he presented 23 letters of support from friends, co-workers and his wife's family, though not from his own who were against his marriage.88 In contrast, the Appeal Division dismissed the appeal against removal of a 71-year-old appellant who had lived in Canada for some 47 years where, apart from the support of his common-law spouse, the appellant had little or no support and he did not have much to show for all the years he had resided in Canada.89 9.2.6 HardshipIn exercising its discretionary power, the Appeal Division may look at hardship to the appellant caused by removal from Canada. Hardship the appellant potentially faces upon removal may take two forms: first, the hardship caused by being uprooted from Canada where the appellant may have lived many years and become well established; and second, hardship caused by being removed to a country with which the appellant may have little or no connection. As noted in section 9.2., the Supreme Court of Canada in Chieu 90 and Al Sagban 91 overturned decisions of the Federal Court of Appeal in those cases. The Supreme Court in its decisions made a clear statement on the Appeal Division's jurisdiction to consider the factor of potential foreign hardship when the Appeal Division exercises its discretionary jurisdiction under section 70(1)(b) of the Act. Decisions of the Federal Court, the Immigration Appeal Board (the predecessor of the Appeal Division) and the Appeal Divison with respect to considering foreign hardship rendered prior to the Supreme Court decisions must be read in context of the law as it stood at the time of the particular decisions and may no longer be good law. The Supreme Court decision in Chieu contains an extensive review of the history of the application of foreign hardship The onus is on a permanent resident facing removal to establish the likely country of removal, on a balance of probabilities. It is only in those cases where the Minister disagrees with an individual's submissions as to the likely country of removal that the Minister would need to make submissions as to why some other country is the likely country of removal, or as to why a likely country of removal cannot yet be determined. In the case of Convention refugees, it is less likely that a country of removal will be ascertainable. But permanent residents who are not Convention refugees will usually be able to establish a likely country of removal, thereby permitting the Appeal Division to consider any potential foreign hardship they will face upon removal to that country. The Act requires the Appeal Division to consider "all the circumstances", not just some of the circumstances. Therefore, the Appeal Division may consider positive and negative conditions in the country of removal, including such factors as the availability of employment or medical care, where relevant. If an appellant alleges that there are substantial grounds to believe that he or she will face a risk of torture upon being removed to a country, the Appeal Division will have to consider the implications of the decisions in Suresh and Ahani. 92 In Chandran, 93 the Federal Court-Trial Division upheld a decision of the Appeal Division where the panel while dismissing the appeal recognized as a positive factor that the appellant had been transfused in Canada with blood that was tainted with Creutzfield-Jakob disease. The appellant had argued that Canada should be responsible for his care if he contracted the disease. 9.2.7 Circumstances of MisrepresentationThe inadvertent or careless nature of the misrepresentation is one factor among many others which the Appeal Division may consider in dealing with a request for discretionary relief in cases where an appellant is under a removal order for misrepresentation of a material fact.94 Generally, inadvertent or careless misrepresentation is treated more favourably than is misrepresentation of an intentional nature. Thus, for example, where an appellant mistakenly believes that her divorce has been finalized and holds out that she is single, and the Appeal Division finds the misrepresentation to have been inadvertent or careless rather than intentional, this finding may mitigate the misrepresentation. In one case, where the appellant had genuinely attempted to comply with immigration requirements before leaving his country and where he had played a passive role in events by retaining and relying on immigration consultants there, which resulted in his being admitted to Canada as a permanent resident with no apparent dependants, the Appeal Division considered these circumstances together with other factors weighing in his favour and granted discretionary relief from the removal order.95 In another case, where the appellant had misrepresented her marital status when she applied to come to Canada under the Foreign Domestic Program and later applied for permanent residence, the Appeal Division in exercising its discretionary jurisdiction in favour of the appellant took into consideration that although the misrepresentation had been deliberate and ongoing, it had not caused any additional effort by immigration officials. There was a policy or practice by immigration officers to allow persons in the Program who had misrepresented their marital status to come forward and be exempted from any repercussions, but the appellant had not been aware of it and had therefore experienced additional hardship.96 The Appeal Division allowed an appeal brought under paragraph 70(1)(b) of the Act on the following facts. The appellant's mother had sponsored his application for permanent residence as a member of the family class. Since the appellant's mother was illiterate and the appellant knew little or nothing about Canadian immigration procedures, they retained the services of an immigration consultant on whom they relied for advice. While awaiting the outcome of his application for permanent residence, the appellant had applied for, and obtained, a Minister's permit. The immigration consultant assured the appellant that he was permitted to marry while under a Minister's permit. Later, when the appellant received his record of landing after getting married, he read and signed it, but failed to notice that he was listed as single. The Appeal Division was satisfied that the misrepresentation was more likely than not, innocent and at worst, negligent; the lack of intent to misrepresent went to the quality of the misconduct; and it was a circumstance the Appeal Division could take into account.97 In a case, where the appellant had a grade-six education and a limited knowledge of English, a travel agency had prepared his application for permanent residence. The appellant was unaware of the implications of failing to disclose that he had two children. The Appeal Division exercised its discretion in favour of the appellant and allowed the appeal after finding that the appellant had not planned to deceive immigration authorities. While noting that ignorance of the requirements of the Act and the Regulations was no excuse, the Appeal Division concluded that the lack of planning did mitigate the seriousness of the breach.98 Even where the Appeal Division finds the misrepresentation to be intentional, it may, taking into account all the relevant circumstances of the case, grant discretionary relief. For example, in one case involving misrepresentation where the appellant claimed to have no dependants when in fact he had a son born out of wedlock, the appellant testified that he did not disclose the existence of his son to immigration officials because he did not consider a child born out of wedlock to be his child. Rejecting the appellant's explanation, the Appeal Division found that the appellant's misrepresentation was intentional. However, the Appeal Division took into consideration that his and his family's shame and humiliation had contributed to his decision not to disclose the birth of his son. It also took into consideration that the appellant expressed regret at not having told the truth.99 Where a removal order is made against the appellant on the basis of misrepresentation, the fact that the appellant signed the application for permanent residence without a thorough interview and without the benefit of appropriate interpretation is irrelevant in law. However, those facts may be considered in all the circumstances of the case.100 9.2.8. Circumstances of Failure to Comply with Terms and Conditions of LandingAs with the circumstances surrounding misrepresentation, the Appeal Division examines the circumstances surrounding an appellant's failure to comply with the terms and conditions of landing. In this context, the inadvertent nature of the failure to comply with terms and conditions is a relevant factor for the Appeal Division to consider. For example, where the evidence demonstrates that an appellant, sponsored as a fiancée, is unable to comply with the condition to marry within a specified time period because her sponsor refuses to go through with the marriage, her inability to comply with the condition through no fault of her own would tend to weigh in her favour. In one such case where the appellant had failed to fulfil the condition of landing to marry, the Federal Court of Appeal held that a relevant factor that should have been taken into consideration in the exercise of the Appeal Division's discretionary jurisdiction was the social stigma the appellant faced upon return to the country of origin.101 9.3 CONTINUING NATURE OF DISCRETIONARY JURISDICTIONThe discretionary jurisdiction of the Appeal Division is of a continuing nature in removal cases. Accordingly, the Appeal Division has jurisdiction to reopen an appeal from a removal order on discretionary grounds only, to receive more evidence.102 It may also reinstate an appeal that was withdrawn.103 The Appeal Division may, at its discretion, consider ex post facto evidence to justify a reopening. The only limit on reopening is the Appeal Division's good judgment.104 To justify a reopening, the tendered evidence need only be such as to support a conclusion that there is a reasonable possibility, as opposed to probability, that the evidence could lead the Appeal Division to change its original decision. In cases where the application to reopen is not bona fide, however, in that it is merely a delaying tactic, the Appeal Division may rightly refuse to grant the application to reopen on the basis of a lack of bona fides. 105 The Appeal Division has jurisdiction to reopen an appeal on discretionary grounds where the motion to reopen has been filed before the appellant is removed from Canada and the motion has not been adjudicated on the merits.106 Moreover, the appellant's removal from Canada does not extinguish the Appeal Division's continuing discretionary jurisdiction to hear the motion to reopen filed before removal.107 The Appeal Division may reopen an abandoned appeal from a removal order for the purpose of hearing evidence relevant to the appeal based on all the circumstances of the case.108 In A.B.Z. the Federal Court-Trial Division agreed with a panel of the Appeal Division, that the Appeal Division's power on motions to reopen does not extend to applying the law retroactively and that the change in the Supreme Court of Canada's decision in Baker 109 is not a new circumstance or fact which justifies reopening.110 The Appeal Division subsequently took that approach in Grant, 111 which held that the change in the law brought about by Chieu 112 and Al Sagban 113 does not constitute "new evidence" and that, in the interest of finality of decisions, the Appeal Division should not reopen. Also, in Wang, 114 the Trial Division commented favourably on A.B.Z. 115in a judicial review of an Appeal Division removal order appeal regarding the holder of an immigrant visa.
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