Amro v. Canada (Minister of Citizenship and Immigration), 2003 FCT 298

Date: 20030312     

Docket: IMM-202-02

Neutral Citation: 2003 FCT 298

CALGARY, Alberta, Wednesday, the 12^th day of March, 2003.

PRESENT:    THE HONOURABLE MR. JUSTICE CAMPBELL

BETWEEN:

                             FAWZI OMRAN ABBAS AMRO

                                                                                                     Applicant

                                                    - and -

       THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

                       REASONS FOR ORDER AND ORDER

CAMPBELL J.

[1]    The Applicant seeks judicial review of an Immigration Officer's decision dated December 20, 2001 wherein his humanitarian and compassionate ("H & C") application pursuant to section 114(2) of the Immigration Act was denied.

[2]    The Applicant is a citizen of Jordan. The Applicant married in 1984 and he and his wife have two children. In 1992, the Applicant was convicted of "Attempted Robbery by Force" in the United Arab Emirates, was sentenced to seven years in prison, but was released after five.

[3]    While the Applicant was in prison, his wife and children moved to Canada where they became permanent residents and then Canadian citizens. Following his release, the Applicant applied for a visitor's visa to Canada, but was denied. The Applicant flew to the United States and obtained a Canadian Visitor's Visa from within the United States. Once in Canada, he applied for landing from within the country.

[4]    After hearing detailed and very capable argument by both counsel for the Applicant and Respondent, I am satisfied that the Applicant's criminal conviction drove the negative H & C result. In fact, the record is clear on this point where the Immigration Officer writes the following remark:

Note: subject is inadmissible for his criminal record and misrepresentation ss. 27(2)(a), 29(1)(c.1)(/l) & 27(2)(g). Case report to be directed to inquiry. (Applicant's Application Record, p. 53)

[5]    I am satisfied that, while a criminal conviction can properly be considered as a factor in reaching an H & C decision, in the present case, I find the criminal conviction was acted upon by the Immigration Officer in such a way as to fetter her discretion. Thus, I find the decision was reached in reviewable error.

[6]                 It is important to note that, on the advice of counsel for the Applicant, as of the date of the oral argument in the present case, no inadmissibility decision has yet been made. That is, the belief expressed by the Immigration Officer as quoted above has not come to legal fruition some 14 months after the H & C decision was made. There is no doubt that this fact will be important to consider on the redetermination.

                                                O R D E R

Accordingly, I set aside the Immigration Officer's decision and refer this matter back for redetermination before a different Immigration Officer.

                                                                              "Douglas R. Campbell"

                                                                                                       JUDGE    

CALGARY, Alberta

March 12, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-202-02

STYLE OF CAUSE: Fawzi Omran Amro v. MCI

PLACE OF HEARING:                                   CALGARY, Alberta

DATE OF HEARING:                                     March 11, 2003

REASONS FOR ORDER AND ORDER : CAMPBELL, J.

DATED:                      March 12, 2003

APPEARANCES:

Mr. Peter Wong                                                   FOR APPLICANT

Mr. Rick Garvin                                                   FOR RESPONDENT

SOLICITORS OF RECORD:

Caron & Partners LLP

Calgary, Alberta                                                   FOR APPLICANT

Morris A. Rosenberg

Deputy Attorney General of Canada                   FOR RESPONDENT