Success Story: Client is Happy that his Immigration Deportation is Stayed

Reasons and Decision − Motifs et décision
REMOVAL ORDER

Appellant(s)

KENROY GEORGE

Appelant
and

The Minister of Public Safety and Emergency Preparedness

Respondent

Le ministre de la Sécurité publique et de la Protection civile

Intimé(e)

Date(s) of Hearing

August 31, 2016

Date(s) de l’audience

Place of Hearing

Toronto, Ontario

Lieu de l’audience

Date of Decision

September 6, 2016

Date de la décision

Panel

Rose Andrachuk

Tribunal

Counsel for the Appellant(s)

Yuliya Dumanska

Conseil(s) de l’appelant(e) / des appelant(e)(s

Barrister and Solicitor

Designated Representative(s)

N/A

Représentant(e)(s) désigné(e)(s)

Counsel for the Minister

Anthony DiVecchia

Conseil du ministre

REASONS FOR DECISION

Introduction and Issue

[1] This is a reconsideration pursuant to section 68(3) of the Immigration and Refugee Protection Act (IRPA), of an appeal of a deportation order made against the appellant, Kenroy George.

[2] The appellant does not contest the legal validity of the deportation order. The issue is whether the appellant has proven that the appeal should be allowed or that there should be a stay of the removal order.

Decision

[3] Having considered the appellant’s testimony and documentary evidence, and submissions from the respondent and from counsel, I find that the deportation order should be stayed. The stay of the deportation order made in January 27, 2012 is continued with one additional condition. The final reconsideration is extended for a period of two years.

Background

[4] The appellant is 38 years old. He was born in and is a citizen of Grenada. He immigrated to Canada in 1998 when he was 19 years old.

[5] The Immigration Division issued a deportation order on January 11, 2011 against the appellant based on serious criminality pursuant to section 36(1) of IRPA as a result of his convictions for possession of a stolen credit card and use of stolen credit card.[1] The appellant appealed that order. On January 27, 2012, the Immigration Appeal Division (IAD) stayed that deportation order for a period of four years with final reconsideration to be on or about January 27, 2016.

[6] This is the hearing of the final reconsideration of that stay.

[7] At this hearing the appellant submitted two sets of documents marked as Exhibits A-1 and A-2. The respondent filed the Record and two sets of documents marked exhibit R-1 and R-2.

[8] The appellant gave testimony at the hearing. His mother was present in the hearing room but did not testify.

Analysis

[9] Section 36(1) of IRPA states:

Serious criminality

36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

[10] To stay the deportation order, the panel must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. The appellant bears the burden of proof.

[11] I have considered the interests and Ribic[2] factors involved and also the IAD decision of the January 27, 2012 stay granted by Member Ahlfeld. I am also cognizant of the immigration objectives, especially “to see that families are reunited in Canada,” “to protect the health and safety of Canadians and to maintain the security of Canadian society,” and “…denying access to Canadian territory to persons who are criminals …”.

[12] The appellant has not complied with many conditions of his four-year stay.

[13] The appellant violated condition 1, to keep the Canada Border Services Agency (CBSA) informed of any change in address.

[14] Since the four-year stay was granted in 2012 the appellant violated condition 4 of his stay, “Not commit any criminal offences”. He was charged with an offence on January 30, 2012, just three days after being granted a stay. The charge was Possession of Schedule I Substance, an offence under section of 4(3) of the Controlled Drug and Substances Act (CDSA). He was convicted of this offence on August 22, 2012.

[15] The appellant also violated condition 5 of his stay, “If charged with a criminal offence, immediately report that fact in writing to the Agency”. He did not report the above charge and conviction and he did not report that on January 30, 2012 he was charged with Fail to Comply with Recognizance, an offence under section 145(3) of the Criminal Code of Canada. He also did not report that on March 16, 2014 that he was charged with Possession of a Substance, an offence under section 4(1) of CDSA, and two counts of Possession for the Purposes of Trafficking, offences under section 5(2) of the CDSA. These charges were later withdrawn.

[16] The appellant violated condition 6 by not reporting his August 22, 2012 conviction in writing to the CBSA or the IAD.

[17] The appellant condition 14, “To refrain from sale and use of drugs, as confirmed by the August 22, 2012 conviction. He also freely admitted in testimony that he has been using cocaine while on his Stay until 2014.

[18] The appellant has also violated condition 15, “To keep peace and be of good behaviour” by using drugs and by accumulating traffic fines of $321.21. The claimant has submitted a receipt that he that he has paid $172.00 of the fines due.

[19] The applicant’s criminal behaviour is due mainly to using drugs.

[20] Despite the convictions and violation of the conditions of his stay, the appellant at the reconsideration hearing indicated that he is now eager to change and conform with the conditions of any further extension of his stay that he may be granted. His counsel submits that the appellant was unrepresented at the previous hearing, that he never realized the real possibility of his being deported to Grenada and that he did not take seriously the conditions of his stay. The appellant appeared sincere that he is now willing to change and to abide by any conditions that may be imposed on him.

[21] In considering the Ribic factors, I acknowledge that the offense the appellant committed that led to the deportation order is serious as it involved drugs. However, there is no evidence that it involved violence.

[22] The possibility of rehabilitation is uncertain as the appellant has not dealt with his drug problem, and all his criminality involves drugs. As well, the appellant does not appear to be socially well connected. He is presently not working because of his medical condition, and he does not seem to spend much time in recreational activities, except for cooking for his friends. He also has a problem knowing whom to associate with since he does not know who of his friends is a user of cocaine.

[23] The appellant is only somewhat established in Canada. He has been here since the age of 19. He lives with his mother. He is on social assistance because he cannot work due to knee and back problems. The appellant only has a Grade 7 education and can only find labour work in construction, but cannot perform the job now because of his medical condition. The appellant had an operation on his knee scheduled about two years ago but did not show up for the operation because he was scared of surgery. He has another knee surgery scheduled for September 27, 2016. He testified that he will undergo the surgery because he is hoping that when he recovers he can find employment.

[24] On the positive side, the appellant has taken upgrading courses and hopes to take more. He testified that he is a barber but needs more education to get his barber’s license.

[25] I find that the appellant’s mother would experience some hardship because she would miss her son emotionally and also because he helps her in tasks of daily living, such as cooking, cleaning, laundry and shopping.

[26] I find that the appellant would also suffer hardship if removed to Grenada. He has not lived there since he was 19 years old and he has no family there. He would therefore not have the support of his family there to become re-established and to find employment.

[27] There is no child whose best interests need to be considered in this decision.

Conclusion

[28] Having considered the factors and weighed the evidence I find that the deportation order is valid in law. Taking into account the best interests of a child directly affected by the decision, I find that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case, to warrant a continuation of the stay of the deportation order. The stay of the removal order is continued for a period of two years based on all the previous conditions plus an additional condition of obtaining counselling for his drug habit at Narcotics Anonymous or other drug programs such as those at CAMH. The attendance for counselling is to begin within 4 months of this decision. Counselling is to deal with his drugs problems and help with avoiding further criminality.

CONDITIONS OF STAY OF REMOVAL ORDER

The removal order in this appeal is stayed. This stay is made on the following conditions – the appellant must:

[1] Inform the Canada Border Services Agency (the “Agency”) and the Immigration Appeal Division in writing in advance of any change in your address.

The address of the Agency is:

Canada Border Services Agency, The Greater Toronto Enforcement Centre

6900 Airport Road, Entrance 2B, P.O. Box 290

Mississauga, Ontario, L4V 1E8

The address of the Immigration Appeal Division is:

74 Victoria Street, Suite 400

Toronto, Ontario, M5C 3C7

[2] Provide a copy of your passport or travel document to the Agency or, if you do not have a passport or travel document, complete an application for a passport or a travel document and to provide the application to the Agency.

[3] Apply for an extension of the validity period of any passport or travel document before it expires, and provide a copy of the extended passport or document to the Agency.

[4] Not commit any criminal offences.

[5] If charged with a criminal offence, immediately report that fact in writing to the Agency.

[6] If convicted of a criminal offence, immediately report that fact in writing to the Agency and the Immigration Appeal Division.

[7] Provide all information, notices and documents (the “documents”) required by the conditions of the stay by hand; by regular or registered mail; by courier or priority post to the Canada Border Services Agency, 6900 Airport Road, P.O. Box 290, Entrance 2B, Mississauga, Ontario, L4V 1E8. It is the responsibility of the appellant to ensure that the documents are received by the Agency within any time period required by a condition of stay.

[8] Provide all information, notices and documents (the “documents”) required by the conditions of the stay by hand; by regular or registered mail; by courier or priority post to the Immigration Appeal Division, 74 Victoria Street, Suite 400, Toronto, Ontario, M5C 3C7; or by fax to the Immigration Appeal Division at (416) 954-1165. Include your Immigration Appeal Division file number. It is the responsibility of the appellant that the documents are received by the Immigration Appeal Division within any time period required by a condition of the stay.

[9] Report in person (with a written report) at the Canada Border Services Agency, The Toronto Enforcement Centre, 6900 Airport Road, Entrance 2B, Mississauga, Ontario on Wednesday, March 8, 2017, between 8:00 a.m. and 3:30 p.m., and every six(6) months after that date on the following dates:

Wednesday, September 6, 2017

Wednesday, March 7, 2018

The reports are to contain details of the appellant’s:

[x] employment or efforts to obtain employment if unemployed;

[x] current living arrangements;

[x] marital status including common-law relationships;

[x] attendance at any educational institution and any change in that attendance;

[x] attendance at meetings of Narcotics Anonymous or any other drug program;

[10] Make reasonable efforts to seek and maintain full time employment and IMMEDIATELY report any change in employment to the Agency.

[11] Attend counselling for your drug habit at Narcotics Anonymous or other drug program such as those at CAMH (attendance must begin within 4 months of this decision starting in January 2017) (Note: If you withdraw your consent to the foregoing condition, you must bring an application in writing to the Immigration Appeal Division forthwith to have this condition removed.)

[12] Not knowingly associate with individuals who have a criminal record, with the exception of close family members, or who are engaged in criminal activity, except contact that might result while attending meetings of Alcoholics Anonymous, or any other drug or alcohol rehabilitation program.

[13] Not own or possess offensive weapons or imitations of offensive weapons.

[14] Respect all parole conditions and any court orders.

[15] Refrain from the illegal use or sale of drugs.

[16] Keep the peace and be of good behaviour.

FINAL RECONSIDERATION

Take notice that the Immigration Appeal Division will reconsider the case on or about the 7th day of September 2018, or at such other date as it determines, at which time it may change or cancel any non-prescribed conditions imposed, or it may cancel the stay and then allow or dismiss the appeal. Until your final reconsideration is decided (or your stay is otherwise ended), your stay remains in effect and you must comply with the conditions of your stay, including advising the Agency and the Immigration Appeal Division in writing before any change in your address.

The Immigration Appeal Division may contact you by letter in advance of final reconsideration to ask you to provide written confirmation that you have complied with the conditions of stay.

IMPORTANT WARNING

This stay of removal is cancelled and your appeal is terminated by operation of law and you may be removed from Canada if you are convicted of another offence referred to in subsection 36(1) of the Immigration and Refugee Protection Act (sentence of more than six months imposed or punishable by term of imprisonment of at least ten years) before your case has been finally reconsidered.