Docket: IMM-4643-10
Citation: 2011 FC 801
Ottawa, Ontario, June 30,
2011
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
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ALBERTO GIUSEPPE FERRARO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Mr.
Alberto Giuseppe Ferraro seeks judicial review of the decision denying his
requests for a temporary resident permit (Immigration and Refugee Protection
Act, SC 2001, c 27, s 24 [IRPA]) and for humanitarian and
compassionate consideration (H&C) to overcome inadmissibility for serious
criminality (IRPA, s 25).
[2]
Mr.
Ferraro is a citizen of Ecuador, who immigrated to
Canada when he was nine years old and has lived in Canada continuously
ever since. His family lives in Canada, including his four
children
and a stepson,
his widowed father, his sister, his aunts, uncles and cousins. At present, he
lives with his sick father and his current common-law wife, his stepson and their
new baby (Savannah). He is the
owner of two luxury car businesses in Toronto, one of which was
opened in February 2009. He has been very successful in his business matters
and in one of the written submissions submitted on his behalf, his counsel
describes him as financially secure.
[3]
Mr.
Ferraro pled guilty to two counts of trafficking a controlled substance and
possession of stolen property under $5,000 in September 2001. He received
concurrent three-year sentences and was released after seven months on
accelerated parole. A deportation order was issued against him in 2002.
[4]
Since
then, Mr. Ferraro has been the subject of various charges (in 2003, 2007 and
2009) related to drugs
which had all been either stayed or withdrawn by the time the decision under
review was rendered.
[5]
He
filed his request for a temporary resident permit and for an H&C in May
2006 and, for reasons that have not totally been explained, the
decision was only made on June 18, 2010 after he had filed several updated
submissions and evidence.
[6]
Mr.
Ferraro raises several issues with the decision, including issues of procedural
fairness. First, he said that he should have been granted an interview by the decision-maker,
but after discussion at the hearing, it was conceded that this argument was not
in accordance with the law as it stands.
[7]
Second,
Mr. Ferraro argues that the decision-maker exhibited a reasonable apprehension
of bias which permeated her whole approach to his case. This allegation of bias
arose from an e-mail exchange between the respondent Ministry and Canada Border
Services (CBSA) officials. Also, according to the applicant, the decision-maker
ignored the fact that he only served seven months of his three-year sentence
and was released on accelerated parole because of his good behaviour. For the
applicant, this was an important factor to consider with respect to his
rehabilitation.
[8]
Mr. Ferraro also put a great deal of emphasis on the fact
that the decision-maker appears to have relied on an outdated RCMP printout in
stating that the December 2009 charges were still awaiting disposition, whereas
Exhibit P of the Applicant’s Record clearly demonstrates that these charges
were stayed (although counsel was not present at the proceeding and afterwards
sought, without success, to have these charges withdrawn). The respondent
answered that in his written submissions to the decision-maker, the applicant’s
counsel did not even refer to the disposition of these charges, even though the
submissions were made a month after the charges were stayed. That
said, and in any event, the weight given to these charges, if any, was minimal.
[9]
Also,
the applicant argues that the decision-maker’s reliance upon criminal charges,
particularly those from 2003 which were later withdrawn, was not proper since
withdrawn charges are not evidence of criminality.
[10]
Third,
Mr. Ferraro argues that the decision-maker’s finding that there was little
before her to prove Mr. Ferraro was rehabilitated was unreasonable as he had
submitted extensive evidence of rehabilitation, including, as mentioned, that
he had been released on accelerated parole after seven months due to his good
behaviour, that he participated in a program called Choices, and that his
business sponsors children’s charities, teams and churches. That said, it is
not clear that these sponsorships were part of his rehabilitation as opposed to
his ongoing role in the community since Mr. Ferraro only notes that these
sponsorships were done “in past and present” (Certified Record at 47).
[11]
Fourth,
Mr. Ferraro argues that the decision-maker’s assessment regarding the best
interests of his children was flawed. His main submission in this respect
concerned the decision-maker’s statement that were Mr. Ferraro to be removed
“each [child] has another parent remaining in Canada who could continue to care
for [him or her]” and that in the case of his step-son, Rio, there were two
parents – his mother and biological father. According to the applicant, this particular
statement is ridiculous since Rio’s biological father had allegedly been
abusive, as was noted in a letter from the applicant’s common-law wife (Rio’s mother). The
respondent disagreed and submitted that the best interests of the child
analysis was reasonable, especially since a different letter from Mr. Ferraro’s
wife confirmed that Rio sees his biological father on weekends and some
holidays,
suggesting he is now a fit parent.
[12]
Fifth,
although Mr. Ferraro asserts that it was unreasonable for the decision-maker to
have considered that he could be deported to Italy instead of Ecuador, this was
not an argument he insisted upon at the hearing before me, given that Italy had
been raised as a potential country of destination by the applicant himself and the decision-maker
clearly expressed no views in that respect. She simply attempted to cover in
her reasons all the representations made by Mr. Ferraro and his counsel.
[13]
Finally,
the applicant took issue with the fact that the decision-maker failed to
perform a separate analysis regarding his request for a temporary resident
permit.
[14]
The
parties are agreed that questions involving procedural fairness, including the
allegation of a reasonable apprehension of bias, are reviewable on a
correctness standard (Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraph 43 [Khosa]; Dunsmuir v New Brunswick, 2008
SCC 9 [Dunsmuir]; Ahmad v Canada (Minister of Citizenship and
Immigration), 2008 FC 646 at paragraph 14). As to the validity of the
overall decision made under the H&C provision of IRPA, this is generally
subject to a reasonableness standard (Dunsmuir, above, at paragraphs 51,
53; Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Kinsana v Canada
(Minister of Citizenship and Immigration), 2008 FC 307, aff’d FCA
189 at paragraph 12 [Kinsana]). The decision-maker’s assessment of the best
interests of the children attracts a reasonableness standard (Kinsana,
above). Similarly, her assessment of and weighing of the evidence regarding the
applicant’s criminality, rehabilitation and return to Ecuador or Italy is governed by
the reasonableness standard (Khosa, above, at paragraph 46; Katwaru v Canada (Minister of Citizenship
and Immigration), 2010
FC 1277 at paragraph 30). Whether or not we consider the decision-maker’s
failure to give separate reasons for the temporary resident permit application
as an issue of procedural fairness (as was done in Voluntad v Canada
(Minister of Citizenship and Immigration), 2008 FC 1361 [Voluntad]) or an error
of law calling for a correctness standard or under the overall reasonableness
standard, this does not impact the resulting decision not to intervene in this
respect.
[15]
A high burden rests on an applicant who seeks to establish
that there
was a reasonable apprehension of bias (Zambrano v Canada (Minister
of Citizenship and Immigration), 2008 FC 481 at paragraph 53). The e-mail
exchange referred to by the applicant does not indicate a nefarious motive on
the part of the respondent and the Court cannot reasonably read into these
e-mails what the applicant wishes to infer. An informed person viewing the
matter realistically and practically would think that the respondent was simply
trying to move Mr. Ferraro’s file along in the process, a request Mr. Ferraro
had himself made on several occasions.
[16]
Turning
now to the applicant’s submission that the decision-maker did not properly consider
that he was released on accelerated parole and made an unreasonable finding in
respect of his rehabilitation, the Court notes that Mr. Ferraro’s submissions regarding
his rehabilitation were indeed limited to what has already been described as
well as to statements from his counsel (not supported by affidavits) that he no
longer associates with persons related to his criminal convictions, is a
changed man as evidenced by successful businesses and is involved with his
family.
In her reasons, the decision-maker expressly refers to Mr. Ferraro’s work
record, the sponsorships, the Choices program and his business and personal
relationships. She specifically refers to the fact that he was released from
custody on accelerated parole after serving seven months on the first page of
her decision dealing with the background as well as on page 8 of the Certified
Record where she expressly quotes from a written statement from the applicant
himself explaining how he had made an error in judgment, how he used his time
in prison to upgrade his education and how he benefited from an accelerated
parole and took this opportunity to enrol in the Choices program and how he has
not been convicted of any other offence since the 2001 conviction. She also
refers to the said accelerated parole by quoting an older statutory declaration
from the applicant on the same page.
[17]
There
is a presumption that the decision-maker has considered all the evidence before
her. This presumption will only be rebutted where the evidence not discussed
has high probative value and is relevant to an issue at the core of the claim (Florea v Canada
(Minister of Employment and Immigration), [1993] FCJ No 598 (CA); Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425, 157 FTR
35 at para 17; as further explained in Ozdemir v Canada
(Minister of Citizenship and Immigration), 2001 FCA 331 at paras
9-11). In the particular circumstances of this case, I am not prepared to
conclude simply because the decision-maker does not repeat her reference to the
accelerated parole on page 10 of the Certified Record that she has failed to
consider this point in her assessment of Mr. Ferraro’s rehabilitation.
[18]
I
am not satisfied that she failed to weigh all the evidence provided before
reaching her conclusion. As she noted, she also considered his relationship at
the time and concluded that in 2001 he was already 39 years old and that no
argument could be made that he was “an impetuous youth who ‘got in with the
wrong crowd’”. At that point in his life, he already had children of his own
and was running a business which had been established for many years already
and was presumably successful. His only motivation thus appeared to have been
personal gain. In the context of her determination on the nature of the
applicant’s criminality,
the conclusion she reached was certainly one of the outcomes that was
justifiable on the facts and the law of this case.
[19]
The
decision-maker may have overlooked the fact that the 2009 charges were stayed, but
this error was not material, especially since, as noted by the respondent, the
applicant’s submissions to the decision-maker did not even mention that these
charges had been stayed a month before. The Court cannot ask the decision-maker
to provide greater explanation in her reasons than that which the applicant
submitted, especially since in H&C applications, the applicant bears the
burden of adducing proof of any assertion on which he relies (Owusu v Canada
(Minister of Citizenship and Immigration), 2004 FCA 38).
[20]
At the hearing, the central debate
concerned the issue of the decision-maker’s reliance on withdrawn charges,
particularly those from 2003. Counsel for the applicant submitted that
according to the Federal
Court of Appeal in Sittampalam v Canada (Minister of Citizenship and
Immigration), 2006 FCA 326, withdrawn or dismissed charges cannot be
used as evidence of an individual’s criminality. This argument is also supported
by Thuraisingam v Canada (Minister of Citizenship and Immigration), 2004 FC 607 [Thuraisingam],
where Justice Mactavish found that “a distinction
must be drawn between reliance on the fact that someone has been charged with a
criminal offense, and reliance on the evidence that underlies the charges in
question” (para 35). In Thuraisingam, the applicant noted, there
was external evidence underlying the charges, including wire-tap evidence and
sworn affidavits from a police officer and a witness, whereas, the withdrawn
charges in his case were only detailed by a CPIC record (including a record of
convictions and an arrest record) and a summary by the CBSA. The applicant also
relied upon Bain v Rodrigue, 2004 BCPC 259, where it was found that a
record of arrest does not have the reliability necessary to be considered
admissible in any proceedings.
[21]
While
the applicant’s submissions on the law are correct, the Court cannot agree that
the decision-maker’s analysis in respect of the withdrawn charges was unreasonable.
This is not a situation where the decision-maker used charges, in and of
themselves, as evidence of Mr. Ferraro’s criminality. Here, the decision-maker only
took note of the physical evidence found at the scene of Mr. Ferraro’s business
premises at the time of the seizure, regardless of who may have been involved or
responsible. She indicated her concern as to the quantities of drugs and
weapons found and seized. The underlying evidence relied upon by the decision-maker
was based on an inventory of items seized as detailed in the police report,
evidence which is concrete and can be distinguished from the allegations of
involvement in criminal activities which were the subject of Thuraisingam.
In his voluminous and numerous submissions, and despite the fact that he deals
at length with his later criminal charges, Mr. Ferraro never contested the fact
that physical evidence was recovered from his business premises in 2003. In the particular circumstances,
it was within the decision-maker’s discretion to consider the portion of
the incident report that relates to physical seizure as credible. In any event,
in the end she notes that she gives this factor little weight and, in fact,
that in the final analysis, without reference to the numerous later charges, in
her opinion it was the applicant’s actual convictions in 2001 that were
determinative of the application as illustrated by her comments at page 10 of
the Certified Record.
[22]
Similarly, the applicant’s argument
that the decision-maker failed to assess properly the best interests of his
children must fail. The recent jurisprudence on this issue was summarized by
Justice Michel Shore in Khoja v Canada (Minister of Citizenship and
Immigration), 2010
FC 142, who concluded that the best interests of the child is only one factor
to be weighed by H&C decision-makers (para 43). It is not necessarily
conclusive of the H&C request.
[23]
The decision-maker
clearly considered the particular circumstances of each child separately,
including letters from them and their mothers. She noted that Mr. Ferraro is
indeed an active participant in the lives of his then three youngest children,
despite the fact that he is neither the custodial parent of Victoria and Damian, nor Rio’s
biological father. There is little doubt that she was alert, alive and
sensitive to the best interests of the children, especially when she confirms,
in her conclusions, that they are all strongly attached to their father. She
weighed this factor in favour of granting the exceptional privilege
sought by the applicant. I see no reason to intervene in this portion of the
decision.
[24]
Although
the decision is seen as harsh and will have significant impacts on the
applicant, his family, and employees, the decision-maker’s reasoning is cogent
and well-balanced, meeting the requirements of justification, transparency and
intelligibility (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47). The decision-maker had to balance not only the best interests of the
children and the general principle of reunification and maintenance of the
family unit, but also the clear objective of the legislature to remove
criminals from Canada (Medovarski v Canada
(Minister of Citizenship and Immigration), 2005
SCC 51 at para 10; Ramnanan v Canada (Minister of Citizenship and
Immigration), 2008 FC 404 at paras 2, 46-47). In that context, the
overall decision falls within the range of possible, acceptable outcomes
defensible in respect of the facts and the law and the Court cannot intervene
to substitute its own opinion for that of the decision-maker.
[25]
There
was also no error with respect to rejection of the applicant’s request for a
temporary resident permit without a distinct analysis. In effect, given that
Mr. Ferraro’s request was clearly based on the same grounds as those of his
H&C application, it was proper for the decision-maker to simply refer to
her same analysis (Voluntad, above).
[26]
The parties did not seek certification of any
question and upon determining that this case turns on its own facts, no
question will be certified.
[27]
The application is dismissed.
ORDER
THIS COURT
ORDERS that the application is dismissed.
“Johanne
Gauthier”
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