Date: 20070706
Docket: IMM-324-06
Citation: 2007 FC 719
BETWEEN:
KAYODE
ZAHEED KASSIM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of an immigration officer, dated January 12, 2006, wherein the officer
refused the applicant’s application for permanent residence on humanitarian and
compassionate (H&C) grounds.
[2]
The
applicant seeks:
(a) an order
quashing the decision refusing the applicant’s application brought pursuant to
subsection 25(1) of IRPA for exemption from section 11 of IRPA in order to have
an application for permanent residence processed from within Canada on H&C
grounds, or in the alternative;
(b) a
declaration that he meets the requirements of subsection 25(1) of IRPA for
exemption from the application of section 11 of IRPA and that his application
for permanent residence be processed from within Canada on H&C grounds, or
in the alternative; an order referring the matter back for redetermination with
a direction that the decision maker declare that the applicant meets the
requirements of subsection 25(1) of IRPA for exemption from section 11 of IRPA,
and that his application for permanent residence be processed from within
Canada on H&C grounds; or
(c) an order
referring the matter for redetermination by a different officer.
Background
[3]
The
applicant, Kayode Zaheed Kassim, is a citizen of Nigeria. He entered Canada in March
2001 and claimed refugee protection alleging a fear of persecution for his
religious beliefs. This claim was denied in August 2001. The applicant married
his wife, who is a permanent resident of Canada, in October
2001. The couple have two children together, and live with two children from
his wife’s previous relationship. The applicant also has two children still
residing in Nigeria. The
applicant received a negative Pre-Removal Risk Assessment and was removed from Canada in February
2003. The applicant re-entered Canada without proper authorization on June 21,
2003, and a warrant for his arrest was executed on January 2, 2004.
[4]
The
applicant applied for permanent residence on H&C grounds in September 2004.
His application for an exemption in order to apply for permanent residence
from within Canada was approved
on May 13, 2005. In September 2005 the applicant was convicted of fraud,
sentenced to eighteen months probation and made to pay $4,000 in restitution.
By decision dated January 12, 2006, the applicant’s application for permanent
residence was denied because he was unable to meet the statutory requirements
of IRPA, specifically on the basis of criminal inadmissibility, pursuant to paragraph
36(1)(a) of IRPA. This is the judicial review of the officer’s decision to deny
the applicant’s application for permanent residence on H&C grounds.
Officer’s
Reasons
[5]
By
letter dated January 12, 2006, the applicant was informed that H&C factors
were assessed to decide whether to grant him an exemption from certain
legislative requirements to allow the processing of his application for
permanent residence from within Canada. The officer noted that
on May 13, 2005, his request for an exemption from these requirements was
granted. However, this fact did not exempt him from the second step of the
process, which was to meet all of the other statutory requirements of IRPA.
[6]
The
officer made a separate decision regarding the applicant’s ability to meet the
other statutory requirements for permanent residence, and determined that he
was inadmissible to Canada. The applicant was criminally inadmissible under
paragraph 36(1)(a) of IRPA, and his application for permanent residence was
therefore refused. The officer’s notes constitute reasons for the decision.
The officer noted the
following:
Outstanding requirements: the RPRF fee,
CSIS, RCMP and medical checks…
On September 19 2005 Mr. Kassim was
convicted of attempting to obtain credit by false pretences, uttering forged
documents, possession of stolen property and personation with intent. He was
given a suspended sentence and probation for 18 months. Step 2 decision
pending…
Mr. Kassim’s application for permanent
residence was refused today as he is criminally inadmissible under section
36(1)(a) of the Immigration and Refugee Protection Act.
Issues
[7]
The
applicant submitted the following issues for consideration:
- Was
the officer’s assessment of the evidence patently unreasonable?
- Did
the officer err in law or fact by not weighing the applicant’s criminality
against other H&C factors that favoured the applicant?
- Did
the officer err by not providing the applicant with an opportunity to
address the criminality issue via an interview or in writing?
- Did
the officer pay enough attention to the best interests of the children,
including the child with a heart condition?
- Did
the officer’s notes and letter provide sufficient reasons?
- Did
the officer err in failing to recommend the applicant for a Minister’s
permit?
[8]
I
would restate the issue as follows:
Did the
officer err in refusing the applicant’s application for permanent residence on
H&C grounds on the basis of criminal inadmissibility?
Analysis and
Decison
Standard of
Review
[9]
The
decision of an immigration officer with respect to an H&C application is
reviewable on the standard of reasonableness (see Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999) 174 D.L.R.
(4th) 193).
[10]
Issue
1
Did the
officer err in refusing the applicant’s application for permanent residence on
H&C grounds on the basis of criminal inadmissibility?
There was no
dispute at the hearing that an application for permanent residence on H&C
grounds is a two-step process. First, H&C grounds are considered in order
to determine whether the applicant may apply for permanent residence from
within Canada. As noted in
the officer’s decision, the applicant provided sufficient evidence to fulfill
this step. Secondly, the applicant must satisfy all other legislative
requirements under IRPA. The officer determined that the applicant did not
fulfill this step as he was found to be criminally inadmissible under paragraph
36(1)(a) of IRPA.
[11] At the hearing of
the application for judicial review, the applicant argued that the officer
failed to consider whether the H&C factors in his case warranted granting
him an exemption pursuant to subsection 25(1) of IRPA, thereby overcoming his
criminal inadmissibility.
[12] The respondent
submitted that pursuant to section 25 of IRPA, the Minister could, of his own
initiative, have made an exemption with respect to the applicant’s criminal
inadmissibility, but did not. In addition, the respondent submitted that the
applicant could have requested an exemption with respect to his criminal
inadmissibility, but no such request was made.
[13] There was no
dispute at the hearing that the H&C process involved two steps. The first
step consists of the officer determining whether or not the applicant can apply
for permanent residence status from within Canada. The officer
determined that the applicant could apply from within Canada. The second
step requires the officer to determine whether the applicant meets the
requirements of IRPA and is not inadmissible. In this case, the officer found
that the applicant was criminally inadmissible under paragraph 36(1)(a) of IRPA.
[14] In order for the
applicant to succeed on this application, he must show that he requested an
exemption with respect to his criminal inadmissibility. The record discloses
the following requests by the applicant:
We request that you process Mr. Kassim’s
application for landing on humanitarian and compassionate grounds as per the
provisions of s. 25(1) of the Immigration and Refugee Protection Act (IRPA)
and in accordance with immigration policy as stated in the Inland Processing
Manual Chapter 5 (IP-5). Mr. Kassim’s application is based on the following
three grounds:
1. Personalized
Risk (IP-5 13.1)
2. Establishment
in Canada (IP-5 11.2)
3. Other
Cases (IP-5 13.12)
.
. .
Conclusion
In
coming to a decision, we implore you to please address your mind to the fact
that Mr. Kassim is a young educated man with a bright future ahead of him. In
his young age, he has been subjected to persecution. Although he has minor
brush with the law (resulting for instance, in a one year probation in 2001),
he generally has a good civil record in Canada and Nigeria.
(Tribunal
record page 152)
I would also
note that the applicant’s criminal lawyer advised the officer of the
applicant’s criminal conviction.
[15] Although the applicant’s
request could have been more explicit, I am of the view that the above facts
taken together are sufficient to constitute a request by the applicant to
exempt him from the effects of his criminal inadmissibility.
[16] The officer’s
refusal letter makes the following reference to the applicant’s criminal
inadmissibility:
First, humanitarian and compassionate
factors are assessed to decide whether to grant an exemption from certain
legislative requirements to allow processing of your application for permanent
residence from within Canada. On 13-May-2005 a
representative of the Minister of Citizenship and Immigration approved your
request for an exemption from these 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.
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 are
inadmissible for criminality under section 36(1)(a) of The Immigration and
Refugee Protection. As a result, your application for permanent residence is
refused and the exemption previously granted has no further effect.
[17] The officer’s notes
read in part as follows:
MR. KASSIM’S APPLICATION FOR PERMANENT
RESIDENCE WAS REFUSED TODAY AS HE IS CRIMINALLY INADMISSIBLE UNDER SECTION
36(1)(A) OF THE IMMIGRATION AND REFUGEE PROTECTION ACT. . . .
[18] I cannot determine
from the above whether the officer considered the request for an exemption with
respect to the applicant’s criminal inadmissibility. If the request was
considered, I cannot determine what factors were taken into account by the
officer. Consequently, I find the decision to be unreasonable and it must be
set aside.
[19] The application for
judicial review is therefore allowed and the matter is referred to another
officer for redetermination.
[20] The parties shall
have one week from the date of this decision to submit any proposed serious
question of general importance for my consideration for certification and a
further five days for any reply.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
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11.(1)
A foreign national must, before entering Canada,
apply to an officer for a visa or for any other document required by the
regulations. The visa or document shall be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
24.(1) A
foreign national who, in the opinion of an officer, is inadmissible or does
not meet the requirements of this Act becomes a temporary resident if an
officer is of the opinion that it is justified in the circumstances and
issues a temporary resident permit, which may be cancelled at any time.
25.(1) The
Minister shall, upon request of a foreign national who is inadmissible or who
does not meet the requirements of this Act, and may, on the Minister’s own
initiative, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
36.(1)
A permanent resident or a foreign national is inadmissible on grounds of
serious criminality for
(a) having
been convicted in Canada of an offence under an Act of
Parliament punishable by a maximum term of imprisonment of at least 10 years,
or of an offence under an Act of Parliament for which a term of imprisonment
of more than six months has been imposed;
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11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
24.(1) Devient résident
temporaire l’étranger, dont l’agent estime qu’il est interdit de territoire
ou ne se conforme pas à la présente loi, à qui il délivre, s’il estime que
les circonstances le justifient, un permis de séjour temporaire — titre
révocable en tout temps.
25.(1) Le ministre doit, sur
demande d’un étranger interdit de territoire ou qui ne se conforme pas à la
présente loi, et peut, de sa propre initiative, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
36.(1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants:
a)
être déclaré coupable au Canada d’une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction
à une loi fédérale pour laquelle un emprisonnement de plus de six mois est
infligé;
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