Date: 20110216
Docket: IMM-3537-10
Citation: 2011 FC 183
Toronto,
Ontario, February 16, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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THUSITHA RUWAN SIRISENA KALANSYRIYAGE
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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 JUDGMENT AND
JUDGMENT
[1]
The
applicant asks the Court to review and set aside a negative decision made by an
officer on his application for permanent residence within Canada on
humanitarian and compassionate grounds (H&C application).
[2]
I
appreciate the discretionary nature of H&C decisions and that they are
entitled to considerable deference; however, an H&C applicant is entitled
to a decision based on all of the evidence filed and that has not been
influenced by irrelevant considerations. While H&C decisions are
discretionary they must be made on a principled basis.
[3]
In
this case, the officer failed to consider some of the evidence that was before
him and considered irrelevant facts; therefore, this application will be
allowed.
[4]
I
find that the officer failed to consider one of two letters submitted by the
applicant's brother. In the decision, under the heading “FAMILY OR PERSONAL
TIES THAT WOULD CREATE HARDSHIP IF SEVERED" the officer writes:
The applicant is unmarried. His brother
resides in Canada as a permanent resident in
that he was sponsored for his residency by his spouse. Information provided in
the applicant's PRRA application indicates that the applicant's mother is
residing in Canada on a visitor's visa. While
previous submissions provided in January of 2008 indicate that the applicant is
assisting his brother and wife with rent, and that they will be “unable to
endure the pain of separation and the sense of security” if the applicant were
to return to Sri Lanka, I note that the most recent submissions provided are
silent with regard to the applicant's relationship with his brother and his
family. While I accept that a close relationship may exist between
the applicant and his family in Canada,
insufficient evidence has been provided to indicate that severing these
relationships would amount to an undue, undeserved or disproportionate
hardship. [emphasis added]
[5]
Contrary
to the officer’s statement, the most recent submission included a letter from
the applicant’s brother that set out in considerable detail the applicant’s relationship
with his brother’s family. He writes, in part:
Thusitha is the only family I
have in Canada. Most importantly he is the
only relative that my daughter, Dinara, has from the paternal side. Since her
birth in May of 2009, Thusitha has been a lot of support for my wife and
myself. Since I work night shift on certain days of the month, I had to count
on Thusitha to help my wife with tasks such as making paediatrician
appointments or getting diapers when they have run out or babysitting Dinara
when we are working late. Those are some of the many things that Thusitha has
been there for me. Not only has he been a great help when we were in need of
help, he is caring and thoughtful as well. My daughter has grown closer to him
and I would not want her to miss out on the opportunity to get to know her only
uncle.
Since I have made a home for
myself in Canada, Thusitha is the only link to
my family as I have no other relatives in Canada. By being there for each other during
hard times and good times, we have definitely strengthened our brotherly bond.
Having gone through the experience of being new in Canada without any family or friends, Thusitha
showed me the value of having a brother. He showed me things about himself
that I did not know before; hard-working, honest and family oriented.
During his spare time you can
always find him at my house, reading a book to my daughter or teaching her how
to clap or give a flying kiss. I'm definitely proud of how my little brother
has grown up to be such a responsible and successful individual. I know that Canada needs more people like him
that contribute to the society in a positive way.
[6]
This
evidence warranted a close consideration by the officer – it appears to have
received none. The finding that the applicant and his brother’s family may
have a close relationship is quite simply unreasonable when one reviews this
evidence – there can be no question but that they do have a close
relationship. Moreover, the officer’s finding that “the most recent
submissions provided are silent with regard to the applicant's relationship
with his brother and his family” is simply wrong given the above-excerpted letter
included in the recent submissions and the letter was specifically referred to
in counsel’s written representations.
[7]
The
applicant also tendered a letter from the General Counsel and HR Manager of his
employer. The officer summarizes his understanding of this letter as follows:
…[I]t is noted that the
applicant has progressed well in his work at this company and currently holds a
position in which he oversees sanitation inspection of a particular line at
the food plant, earning $55,000 per year. The company appears to hold the
applicant in high regard indicating their support for his permanent residence
in Canada. They have indicated that
travel outside of Canada has become a necessity for
the position held by the applicant and have requested his application be
expedited. It not indicated what, if any impact, a negative determination of
this application for permanent residence may have on the company.
[8]
In
contrast, the letter writer indicates that the applicant commenced his
employment in July 2006 as an hourly employee earning $15 per hour. He was
promoted less than one year later to a full-time salaried position as a day
shift production supervisor at an annual salary of $50,000. Some six months
later, he was given added responsibility to oversee sanitation for a food
product line at the plant, and his annual salary was soon increased to
$55,000. The letter then indicates that the applicant is “now being considered
for promotion to the position of Production Manager for our Automatic Bagel Line
Plant.” To say that the applicant has “progressed well” is an understatement.
He has excelled!
[9]
The
letter writer goes on to say that the applicant is an “outgoing individual who
does his work in a steady and reliable manner,” that he is an “integral part of
our production team” and that the company is “continually impressed by his
abilities as well as his work habits and ethics.” He is described as being “an
asset to our company” and the author concludes with this statement:
Mr. Kalansyriyage personifies
the type of immigrant that Canada is attempting to recruit, and
the type of employee that we value, in that he is educated, capable, honest,
hard-working and caring. I sincerely hope that you will give him an
opportunity and recognize his talents and abilities to Canada.
The officer’s statement that the employer appears
to hold the applicant in high regard is also an understatement. He clearly is
held in high regard.
[10]
The
officer notes that “[t]he applicant has provided letters and petitions from his
friends, co-workers and church associates attesting to his value and the high
regard of his community.” The officer then continues: “I note that these
documents do not indicate that the signers of these letters are aware of the
applicant’s current charges for impaired driving.”
[11]
The
fact of the criminal charge was disclosed by the applicant in the March 2010
representations included with his updated H&C submissions. It provides:
The Applicant was charged with
impaired Driving and Driving over 80. He has not been convicted, and [h]e is
pleading not guilty to the charge. His trial is scheduled on April 10th,
2010 [sic] …
[12]
The issue of the admissibility of
evidence of criminal charges in proceedings before the Immigration and Refugee
Board was resolved by the Federal Court of Appeal in Sittampalam v Canada
(Minister of Citizenship and Immigration), 2006 FCA 326, at para. 50:
The
jurisprudence of this Court indicates that evidence surrounding withdrawn or
dismissed charges can be taken into consideration at an immigration hearing.
However, such charges cannot be used, in and of themselves, as evidence of an
individual's criminality: see, for example, Veerasingam v. Canada (M.C.I.)
(2004), [2004] F.C.J. No. 2014, 135 A.C.W.S. (3d) 456 (F.C.T.D.) at para.11; Thuraisingam
v. Canada (M.C.I.) (2004), 251 F.T.R. 282 (T.D.) at para. 35.
[13]
The applicant and respondent are
in agreement that this statement, applied in Kharrat v Canada
(Minister of Citizenship and Immigration), 2007 FC 842, is an accurate statement of the law. Kharrat makes
it clear that the reasoning in Sittampalam applies to H&C decisions.
[14]
Kharrat states that H&C officers can take pending
charges into account; however, the applicant submits that a more recent
decision, Avila v Canada (Minister of Citizenship and Immigration), 2009 FC 13, indicates otherwise. The decision in Avila does not stand for the proposition that officers may
not consider criminal charges; rather, it defines the boundaries of a
procedurally fair consideration of charges. In my view, the similarities
between the facts of this case and Avila make it
clear that the officer’s consideration of the applicant’s charges fell outside
these boundaries. In Avila, at paras. 15 and 17, Justice Lagacé wrote:
In the present
case, not only were there no convictions, but the Officer made no attempt to
ascertain the underlying facts and circumstances of the charges, and denied the
applicants an opportunity to respond. She simply relied on the existence of
outstanding charges, which she discovered on FOSS, to impugn the applicants’
good character. And she did so knowing that the charges were to come before
the criminal court within days of her decision, but nevertheless pressed ahead
despite the possibility of acquittal on the charges.
…
In brief,
Justice here does not appear to have been done, as a result of this statement
[regarding the applicant’s criminal charges] combined [with] the failure of the
Officer to wait for the outcome of the criminal proceedings or at the very
least to attempt to ascertain the underlying facts and circumstances of the
charges and/or to give the applicants an opportunity to respond. It appears
therefore from the Officer's decision and her failure to ascertain or wait for
the result of the criminal charges that the Officer was influenced negatively
and acted under the prism of pending criminal charges through which she viewed
the entire file.
[15]
As noted by the H&C officer,
the applicant was charged with impaired driving and driving over 80. He was
scheduled to appear in court to face these charges in April 2010. The
officer’s decision is dated May 3, 2010. Justice Lagacé’s decision in Avila
parallels the applicant’s situation: the officer does not appear to have
attempted to ascertain any of the underlying facts, the officer knew that the
charges would soon be heard by the criminal courts, if they had not been
already, the officer made no attempt to determine whether the applicant had
been convicted or acquitted of the charges, and the officer discounted letters
from the applicant’s supporters on account of the criminal charges.
[16]
The respondent’s submission that
there is no evidence that the officer refused the application on the basis of
the pending criminal charges is unconvincing given that that the officer twice
mentioned the criminal charges in the decision. In my view, the officer’s
reference to the charges indicates that they were at the very least a factor
that was considered. As stated at para. 8 of Avila:
The Court does
not know precisely what effect the criminal charges in question had on the
analysis made by the Officer on the qualification of the applicant’s social
integration, however the Court can presume that it did not help the applicants
with their H & C request, far from it. If the criminal charges had no
effect on the result of the application, why mention it? What was the
necessity to make such a statement and why suggest that as a result of these
criminal charges the applicants would not be “good members of the society”?
[17]
I
find that the officer erred in her
treatment of the applicant’s pending criminal charges. This alone is a
sufficient ground for allowing the application for judicial review.
[18]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is allowed, the decision dated May
3, 2010 is set aside and the matter is referred to another immigration officer
for a fresh decision. No question is certified.
"Russel W. Zinn"
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