Date: 20070503
Docket: IMM-2686-06
2007 FC
476
Ottawa, Ontario, May 3, 2007
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
JAKUB
KOWALCZYK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Jakub Kowalczyk (the “Applicant”) seeks judicial review of the decision of a Designated
Immigration Officer (the “Officer”), dated May 1, 2006. In that decision, his
application for permanent residence pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, as amended (the “Act”), on
humanitarian and compassionate (“H&C”) grounds was rejected.
[2]
The
Applicant is a citizen of Poland. He came to Canada in October
2000. Shortly thereafter he submitted a Convention refugee claim. The claim was
denied by a decision made on October 24, 2002.
[3]
The
Applicant married a Canadian citizen and on November 11, 2002, he submitted an
application for permanent residence on H&C grounds. He also subsequently
applied for permanent residence pursuant to the Spouse or Common-Law Partner in
Canada Class process. By letter dated May 1, 2006, the Department of
Citizenship and Immigration advised the Applicant that he was ineligible for
consideration as a member of that class and that his application would be
considered on H&C grounds. The Applicant accordingly made submissions in
support of the positive exercise of discretion on H&C grounds, and in so
doing acknowledged that he had been convicted of certain property-related
offences in Poland. The conviction
was entered in Poland after his departure from that country and
although a sentence of 18 months was imposed, it was suspended by the Polish Court on November
30, 2005 for a period of six months.
[4]
The
Officer considered the positive and negative factors with respect to the
Applicant’s H&C application. Reference was made to the criminal conviction
and the following comments appear in the Officer’s notes:
… At time of signing application in
Nov2002 said no to charges and or convictions
Subjects states not aware of sentencing
which occurred in 2001 until Both subject’s and spouses income required to deal
with financial obligations
In Jan 2005 admitted to conviction in
2001
Subject must have been aware of charges
as he was represented in court in Sept 27, 2000. He committed the crime in Dec
15 1999 …
… A greater determining factor for me was
subject’s criminal conviction overseas, although all the reference letters
state that it was a childish mistake and his future should not be affected so
negatively because of it, I am of the opinion that subject continues to make
mistakes. In his first application dated November 2002, subject stated was not
convicted and had no charges. According to the court record provided by subject
in a submission dated 2005, it is clear subject was at least aware he was
charged as the incident happened in Dec 1999 and the first court appearance
took place prior to his arrival in 2000. It is not clear when subject became
aware of his conviction but rather than dealing with it, subject keeps
postponing the execution of the sentence. Canada is not to be used as a hiding ground for
people convicted of criminal offences.
I am satisfied based on all the
information provided that subject’s lack of dealing with his criminal
conviction in Poland outweighs his wanting to
remain in Canada and not being separated from
his spouse. I am not satisfied that undue and undeserved nor disproportionate
hardship would be experienced by either of them nor am I willing to recommend a
permit to someone who has not complied with sentencing. …
[5]
Both
the Applicant and the Minister of Citizenship and Immigration (the
“Respondent”) agree that the applicable standard of review here is
reasonableness, having regard to the discretionary nature of the decision at
issue. However, the Applicant argues that it was an improper exercise of discretion
for the Officer to focus on the criminal conviction. He also argues that the
Officer misstated the evidence, in particular by making the observation that he
had been represented by counsel in the first proceeding before the Polish Court when there
is no evidence to support that finding.
[6]
For
her part, the Respondent submits that the Officer committed no reviewable error
in exercising her discretion. At the same time however the Respondent
acknowledges that there is no evidence in the record to support the Officer’s
finding with respect to the question of legal representation before the Polish Court in 2000.
[7]
I
agree with the parties that the decision at issue required the exercise of
discretion by the Officer. However, the problem is less with the exercise of
discretion than with the Officer’s factual findings that preceded the exercise
of discretion.
[8]
In
my opinion, the Officer erred in finding that the Applicant had legal
representation in the first proceeding before the Polish Court. This
factual finding was made in the absence of evidence and appears to have
contributed to the Officer’s conclusion that the Applicant was aware of his
conviction prior to disclosing it to Canadian authorities. Ultimately, the
Officer’s flawed factual findings may have negatively affected the Officer’s
subsequent exercise of discretion.
[9]
In
the result, this application for judicial review is allowed and the matter is
remitted to another officer for reassessment. Counsel advised that there is no
question for certification arising.
ORDER
The application is allowed and the matter is
remitted to another officer for redetermination. There is no question for
certification arising.
“E.
Heneghan”
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