CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Inadmissible Persons
Judicial review of Immigration Appeal Division (IAD) decision dismissing applicant’s appeal from December 2001 deportation order—Applicant, citizen of Sri Lanka, person described in Immigration Act, s. 27(1)(d) as convicted of indictable offence under Criminal Code, s. 35(1)—During appeal before IAD, Minister of Citizenship and Immigration (Minister) brought motion asking IAD to consider membership in gang as new ground of inadmissibility under Immigration and Refugee Protection Act (IRPA), s. 37(1)(a)—IAD dismissed Minister’s motion, but considered gang membership in relation to seriousness of offences, issues of rehabilitation, public safety—IAD did not assess hardship applicant might face if deported to Sri Lanka—IAD’s decision based on factors listed in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.D.D. No. 4 (I.A.B.) (QL)—Issues whether decision patently unreasonable because: IAD failed to consider hardship faced by applicant in Sri Lanka; IAD had no proper evidentiary basis to support conclusion of gang membership; IAD failed to give proper consideration to applicant’s evidence about rehabilitation—Standard of review patent unreasonableness—Application dismissed—IAD’s finding applicant gang member not finding of inadmissibility under IRPA, s. 37—Even though applicant having only Sri Lankan citizenship, cannot be said deportation to Sri Lanka likely when remains protected by IRPA, s. 115(1) (non-refoulement principle), and when Minister has not designated deportation destination—IAD’s finding applicant member of gang not patently unreasonable—Applicant’s evidence about rehabilitation properly considered—Question certified: whether deportation order, with respect to permanent resident declared to be Convention refugee, specifying as sole country of citizenship country fled as refugee, sufficient without more to establish such country as likely country of removal so that Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 applicable, and IAD required to consider hardship to applicant in that country on appeal from deportation order—Immigration Act, R.S.C., 1985, c. I-2, s. 27(1)(d) (as am. by S.C. 1992, c. 47, s. 78; c. 49, s. 16(F))— Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 37, 115(1)—Criminal Code, R.S.C., 1985, c. C-46, s. 35(1).
Balathavarajan v. Canada (Minister of Citizenship and Immigration) (IMM-3634-04, 2005 FC 1212, Simpson J., order dated 7/9/05, 9 pp.)