CARLOS SANTANA Applicant v. THE MINISTER OF, 2013 FC 477

Date: 20130507 Docket: IMM-9085-12 Citation: 2013 FC 477 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Montréal, Quebec, May 7, 2013 PRESENT: The Honourable Mr. Justice Shore BETWEEN: CARLOS SANTANA Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This decision is in response to an application for judicial review following the rejection, by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB), of the applicant’s appeal of a removal order against him. [ 2 ] The applicant is inadmissible on grounds of serious criminality, under paragraph 36(1) (

a) of the Immigration and Refugee Protection Act , SC 2001, c 27 (IRPA), and he did not challenge the validity of his removal order. The applicant’s arguments are based on humanitarian and compassionate considerations. [ 3 ] The applicant is a person described in paragraph 36(1) (

a) of the IRPA as a permanent resident who is inadmissible on grounds of serious criminality, after he was convicted of an offence punishable by a maximum term of imprisonment of at least ten years. [ 4 ] The Supreme Court of Canada has already decided that the standard of judicial review in these types of cases is reasonableness ( Canada (Minister of Citizenship and Immigration) v Khosa , 2009 SCC 12 , [2009] 1 SCR 339 at paragraph 60 ). [ 5 ] The applicant was previously involved in violent crimes. He states that he was under the influence of alcohol and that he attempted to resist his arrest by police.

[ 6 ] His criminality began when he was 24 years old and already an adult. [ 7 ] The applicant was convicted of evasion and, two years after that, of break and enter. [ 8 ] Given his background of multiple convictions, including trespassing at night, obstruction, break and enter and obstruction, failure, six breaches of conditions and possession of drugs and substances (cannabis and crack), the panel reasonably concluded that the applicant was not in a situation of having committed an isolated act, but that he was guilty of multiple convictions. [ 9 ] According to the applicant, there is no connection between himself and Venezuela, his country of origin; nonetheless, he admitted that he has a basic knowledge of Spanish.

He did not submit evidence that his psychiatric condition could not be treated in Venezuela. [ 10 ] He does not have strong ties to his family home ( Khosa , above); therefore, there are insufficient humanitarian and compassionate grounds. [ 11 ] The factors set out in Ribic v Canada (Minister of Employment and Immigration) , [1985] IADD No. 4 (QL/Lexis) were considered according to Chieu v Canada (Minister of Citizenship and Immigration) , 2002 SCC 3 , [2002] 1 SCR 84 , at paragraph 66 , as well as Khosa , above, at paragraph 60 . [ 12 ] The applicant has not re-offended since 2008, but he was unable to demonstrate that he is on the road to rehabilitation, given that he continues to consume drugs and alcohol (see CHUM report dated August 22, 2011 – decision at para 23). [ 13 ] The applicant’s degree of establishment in Canada and the effects on his family in Canada are of lesser significance, based on the facts, than those in Khosa (above). [ 14 ] The arguments with respect to the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 (R-7), being

Schedule B to the Canada Act (U.K.), 1982, c 11, are premature, as is the matter of his removal, which is moot and has yet to be decided . That is for a stage which has yet to be reached by the decision-maker. [ 15 ] Furthermore, the respondent himself has noted that the applicant will have an opportunity to apply for a pre-removal risk assessment under

section 112 of the IRPA . [ 16 ] It is not for this Court to re-weigh the evidence; this has already been done in a reasonable way by specialized decision- makers. [ 17 ] For all of these reasons, the Court dismisses the applicant’s application for judicial review. JUDGMENT THE COURT ORDERS the dismissal of the applicant’s application for judicial review; there is no question of general importance for certification.

“Michel M.J. Shore” Judge Certified true translation Sebastian Desbarats, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-9085-12 STYLE OF CAUSE: CARLOS SANTANA v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: May 7, 2013 REASONS FOR JUDGMENT AND JUDGMENT: SHORE J. DATED: May 7, 2013 APPEARANCES :

Stewart Istvanffy FOR THE APPLICANT Michel Pépin FOR THE RESPONDENT SOLICITORS OF RECORD : Stewart Istvanffy Counsel Montréal, Quebec FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT