Aviles v. Canada (Minister of Citizenship and Immigration), 2005 FC 1369

Date : 20051007

Docket : IMM-1036-05

Citation : 2005 FC 1369

OTTAWA, Ontario, this 7^th day of October, 2005

PRESENT: THE HONOURABLE MR. JUSTICE ROULEAU

BETWEEN :

                                   MARTHA ALCADIA GONZALEZ AVILES

                                                                                                                              Applicant

and

                       THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                         Respondent

                                                  REASONS FOR ORDER

ROULEAU, J.

[1]                This is an application for leave and judicial review, under s. 72(1) of the Immigration and Refugee Protection Act S.C. 2001, c. 27 (IRPA), of a decision of an Officer of Citizenship and Immigration Canada, dated January 26, 2005, in which the Officer refused the applicant's application for permanent residence based on humanitarian and compassionate ("H & C") grounds because the applicant was inadmissible to Canada as a person described in paragraph 36(2)(b) of the IRPA.

[2]                The applicant, Martha Alcadia Gonzalez Aviles, is a Mexican citizen who has resided in Canada with her two children since October 20, 2000.

[3]                The applicant is a failed refugee claimant who has filed an application for permanent residence in Canada on H & C grounds. In her application, she failed to disclose a conviction, from 1995 in Van Nuys, California, for theft of property, in violation of s. 484 of the California Penal Code. She was given a suspended sentence, placed on probation for 24 months, and made to pay USD$100.00 to the State restitution fund. She also completed 40 hours of community service.

[4]                The Immigration Officer determined that the American conviction was the equivalent of a conviction for Theft in Canada, under s. 322(1) of the Criminal Code. The offence of Theft under $5,000 is punishable under s. 334(b) by indictment or summary conviction. The Officer determined that, as a result of the conviction, the applicant was a person described in s. 36(2)(b) of the IRPA,

which reads as follows:

[5]                The applicant did not disclose her conviction in her H & C application. The Officer found that, despite her qualification for permanent residence on H & C grounds, the applicant was inadmissible to Canada as a person described in s. 36(2)(b) of the IRPA. The applicant contests the Officer's decision in the instant application.

[6]                The decision was disclosed to the applicant in two letters. The first letter, dated November 8, 2004, states in part:

This refers to your application for permanent residence from within Canada on humanitarian and compassionate grounds. This is a two step decision making process.

On March 10, 2003 a representative of the Minister of Citizenship and Immigration approved your request for an exemption from certain legislative requirements for the purpose of processing this application. This decision, however, does not exempt you from the second step of the process, that is meeting all other statutory requirements of the Immigration and Refugee Protection Act such as medical, security, and passport considerations and arrangements for your care and support.

It appears that you are inadmissible to Canada. Specifically, you were convicted in 1995 of Theft of Personal Property in California, USA. This appears to equate to subsection 322(1) (Theft) of the Canadian Criminal Code, which is punishable as per 334(b) (under $5,000) by indictment or summary conviction. As a result, you appear to be a person described in paragraph 36(2)(b) of the Immigration and Refugee Protection Act and your application for permanent residence may have to be refused.

[7]                The second letter, dated January 26, 2005 in which the application is refused, states in part:

A separate decision has been made regarding your ability to meet other statutory requirements and it appears that you are inadmissible to Canada. Specifically, you were convicted on July 17, 1995 of Theft of Personal Property in California, USA. This appears to equate to subsection 322(1) (Theft) of the Canadian Criminal Code, which is punishable as per 334(b) (under $5,000) by indictment or summary conviction. As a result, you appear to be a person described in paragraph 36(2)(b) of the Immigration and Refugee Protection Act. As a result, your application for permanent residence is refused and the exemption previously granted has no further effect.

You are presently in Canada without status, under an enforceable removal order. I will be referring your file to the Canadian Border Services Agency for their action.

[8]                The present application challenges the decision that the applicant is inadmissible to Canada under s. 36(2)(b) of the IRPA.

[9]                The only issue raised in this application is whether the admissibility decision was unreasonable and warrants the intervention of this Court.

[10]            The applicant argues that her conviction is 10 years old, and is for a single incident of shoplifting. She argues that the Officer should have weighed the age of the conviction and the relatively minor nature of the offence against the other factors which would have allowed for an H & C exemption in her case. She further submits that she should be permitted to apply for criminal rehabilitation, under s. 36(3)(c) of the IRPA.    Ms. Avile's counsel points to the factors listed in the IP5 Immigration Manual, which allow the Officer to consider the following factors in an H & C application, where admissibility is being considered: the type of conviction, the time since the conviction, the sentence received, and the nature of the crime (isolated incident or pattern of behaviour) and submits that each factor weighs in the applicant's favour given the circumstances of the case.

[11]            The applicant also argues that the Officer failed to consider the best interests of her two children. She does not argue that the interests of the children should outweigh all the other factors in the application, but merely that the best interests of the children should be considered under s. 25(1) of the IRPA and in accordance with Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 (SCC).

[12]            The respondent maintains that the applicant failed to disclose the conviction in her application, notes that she has not applied for rehabilitation at the present time, and argues that the officer made a reasonable decision in the applicant's case.

[13]            The respondent submits that the application before the Officer was not an application on H & C grounds, but rather an application for permanent residence. The respondent says that the Officer was not considering an H & C exemption, but rather an application for permanent residence which the applicant had been permitted to make from within Canada. The respondent submits that the sections of the Inland Processing Manual referred to by the applicant in her submissions pertain to a decision on H & C grounds, and not to a decision on the merits of a permanent residence application.

[14]            In addition, the respondent notes that the applicant does not come to this Court with clean hands, as she had failed to disclose her conviction in making her application for permanent residence on H & C grounds.

[15]            There is no dispute here that the applicant is a person described in paragraph 36(2)(b) of the Act. However, the overriding and palpable error which has been committed in this case is the application of that provision as governed by paragraph 36(3)(c). That section reads as follows:

[16]            In Qu v. Canada (Minister of Citizenship v. Immigration), [2001] F.C.J. No. 1945, the Federal Court of Appeal observed that the objectives of the Canadian immigration policy as found in section 3 of the Act are to promote the domestic and international interest of Canada. This recognizes the need, among other considerations, to protect the health and safety of Canadians and good order of Canadian society and to promote international order and justice by denying the use of Canadian territory to persons who are likely to engage in criminal activity.

[17]            For the purpose of inadmissibility on the grounds of criminality, the Immigration and Refugee Protection Act categorizes offences according to the seriousness of the offence and the punishment which a person convicted of the offence would receive if it had been committed in Canada. Whether an individual can overcome the prohibition against their inadmissibility on this ground depends upon the seriousness of the offence. For example, individuals who have committed less serious offences may fall within the prescribed class of persons deemed to have been rehabilitated, as defined in section 18 of the Immigration and Refugee Protection Regulations. These individuals need only wait a certain specified period of time before they can apply for admission to Canada without concern of being found inadmissible on the grounds of criminality. On the other hand, paragraph 35(1)(a) of the Act provides an absolute prohibition from admission to permanent residents or foreign nationals for whom there are reasonable grounds to believe have committed war crimes or crimes against humanity. There is no provision in the Act which permits a finding of rehabilitation in cases of that nature.

[18]            Then there are individuals such as the applicant who have been convicted or have committed an offence described in paragraphs 36(1)(b) and (c) and (2)(b) and (c), but who are not members of the prescribed class that is deemed to have been rehabilitated. In accordance with paragraph 36(3)(c) of the Act, these offences do not constitute inadmissibility if the individual can satisfy the Minister that they have been rehabilitated. The purpose of this provision is to allow the Minister to take into consideration the unique facts of each particular case and to consider whether the overall situation warrants a finding that the individual has been rehabilitated. The nature of the offence, the circumstances under which it was committed, the length of time which has elapsed and whether there have been previous or subsequent offences would be significant information in the determination. Given that the wording of paragraph 36(3)(c) places the onus on the applicant to satisfy the Minister that she has been rehabilitated, it follows that she must be given the opportunity to discharge that onus by making submissions concerning the particular facts of her case which favour such a finding.

[19]            The respondent argues that the onus was on the applicant to apply for rehabilitation and that she failed to do so even though she was represented by a lawyer and had ample opportunity to do so from May 26, 2004 until January 26, 2005. I do not agree with that submission for two reasons. First, the letter from the applicant's counsel dated December 13, 2004 sets out all of the factors which, in his submission, demonstrate that the applicant has been rehabilitated. For example, the offence in question was minor theft of personal property under $5000.00, there was no violence, it was her only offence, and it had been almost a decade since the offence occurred. The letter reads:

At the time of the offence, Ms. Gonzalez was living with her common-law partner, Silvia Ascencio, a chronic alcoholic who was emotionally and physically abuse to Ms. Gonzalez. Ms. Ascencio was one of the two friends that Ms. Gonzalez referred to in her letter of explanation to Saron Nestor dated 3 June 2004. Ms. Gonzalez did not realize that they planned to steal anything until after Ms. Ascencio took the discman., put it in the backpack that belonged to them both and told Ms. Gonzalez to carry the backpack. Ms. Gonzalez then exited the store without paying for the discman that she knew was in the backpack.

Ms. Gonzalez was the only one to be charged with this offence. Ms. Gonzalez took full responsibility for her actions and plead guilty to the offence. She regrets having done what Ms. Ascencio asked her to do and realizes that it was wrong. At the time, Ms. Gonzalez felt very much under the control of Ms. Ascencio and was afraid to stand up to her. I ask that you take this into consideration as well as noting this offence is a minor theft of personal property without any violence and the offence occurred almost 10 years ago.

[20]            I am perplexed why this letter was not treated as an application for rehabilitation as this is clearly the issue which it addresses. There was never any communication from the respondent to indicate that the submissions made by the applicant's counsel in the letter were taken into consideration in making a determination as to whether the offence of which she had been convicted was an absolute bar to her admission into Canada. In any event, if the letter does not constitute an application for rehabilitation under paragraph 36(3)(c), there is no reason why the applicant should not be afforded the opportunity to make one now. The respondent argues that the applicant had ample opportunity but failed to act. With respect, there is no prescribed time period in the Act or the Regulations in which an application of this nature must be made. It would be contrary to the intention of the Act as a whole, and paragraph 36(3)(c) in particular, as well as contrary to the principles of natural justice and fairness, to deny the applicant the opportunity to satisfy the Minister that she has been rehabilitated.

[21]            For all of these reasons the application for judicial review is allowed. The decision dated January 26, 2005, is set aside. The respondent is directed to allow the applicant to make an application for rehabilitation pursuant to paragraph 36(3)(c) of the Act.

ORDER

THIS COURT ORDERS that the application for judicial review is allowed.

"Paul U.C. Rouleau"

     JUDGE

                                                       FEDERAL COURT

                                               SOLICITORS OF RECORD

DOCKETS :                               T-1036-05

STYLE OF CAUSE :                 MARTHA ALCADIA GONZALEZ AVILES v.

MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:            Vancouver, B.C.

DATE OF HEARING:               September 15, 2005

REASONS FOR ORDER :      The Honourable Mr. Justice Rouleau

DATE OF REASONS:              October 7, 2005

APPEARANCES:                   

Mr. Robert Hughes                    FOR THE APPLICANT

Ms. Caroline Christiaens          FOR THE RESPONDENT

SOLICITORS OF RECORD:

Smith/Hughes

Vancouver, B.C.                         FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General

of Canada                                  FOR THE RESPONDENT