Date: 20080623
Docket: IMM-2859-07
Citation: 2008 FC 784
Ottawa, Ontario, June 23,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
NEZAMOODEEN
ALI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
refusal to issue a Temporary Resident Permit (TRP) in generally unsympathetic circumstances
must be quashed because of error in the decision. The Applicant has an
extensive criminal record, questionable marital conduct and very little else to
suggest that the equities are on his side. What he does have is a minor child
in Canada whose
existence and interest the Immigration Officer failed to consider.
II. BACKGROUND
[2]
Mr
Ali is a Guyanese citizen who has been in Canada for 20 years;
the last 10 spent trying to “regularize” his citizenship status. Mrs. Ali, the
Applicant’s wife, is now a Canadian citizen, the result of a brief interregnum
marriage to a Canadian between her first marriage and her subsequent resumed
relationship with Mr. Ali. The couple have three children, one of whom was a minor
at the time of the decision.
[3]
Mr.
Ali has a lengthy criminal record - some of the offences were drunk driving;
the others are fraud over $1,000, driving while suspended and obstruction of a
police officer. Alcoholism was said by Mr. Ali to be the cause of these
offences.
[4]
Mr
Ali arrived in Canada in 1997. His refugee application was abandoned,
and his PRRA application was refused. His application for permanent residence
sponsored by Mrs. Ali was refused because of his criminal record.
[5]
A
number of requests to defer removal were refused. His several requests for TRPs
have been denied; the latest denial was on June 29, 2007, which is the subject
matter of this judicial review.
[6]
On
April 24, 2007, a junior officer wrote a detailed report in which she
recommended the issuance of a TRP. The report addressed, amongst other factors,
the family ties and dependence of the minor child on his father’s presence. The
junior officer, while not giving Mr. Ali a ringing endorsement, was prepared to
give him the benefit of the doubt. She believed that he had reformed his
alcoholic ways. Given his criminal record, the junior officer would have
refused the TRP. However, other positive factors influenced her recommendation
to issue a TRP.
[7]
The
recommendation was reviewed by a senior officer (the Immigration Officer) who
concluded that having considered the personal circumstances including family
ties, the risk to Canadians of Mr. Ali’s presence is neither minimal nor does
the need for his presence in Canada outweigh that risk.
[8]
In
the Immigration Officer’s decision to deny a TRP, the Officer outlined Mr.
Ali’s family ties and noted that his children were married and had moved from
home. No mention was made of the minor child or his interests.
III. ANALYSIS
[9]
The
parties addressed the standard of review including Department of Justice’s
recurring theme that Dunsmuir v. New Brunswick, 2008 SCC 9,
includes a standard of patent unreasonableness under the rubric of “reasonableness”.
I need not address that issue here but I do agree that the highly discretionary
nature of a TRP and its exceptional relief means that the Court should accord
considerable deference to the judgment of the officer within the spectrum of
“reasonableness”. The discretionary nature of a TRP is evident from s. 24 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which
reads:
|
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.
(2) A foreign national referred to in subsection (1) to whom an officer
issues a temporary resident permit outside Canada does not become a temporary resident
until they have been examined upon arrival in Canada.
(3) In applying subsection (1), the officer shall act in accordance
with any instructions that the Minister may make.
|
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.
(2) L’étranger visé au paragraphe (1) à qui l’agent
délivre hors du Canada un permis de séjour temporaire ne devient résident
temporaire qu’après s’être soumis au contrôle à son arrivée au Canada.
(3) L’agent est tenu de se conformer aux instructions
que le ministre peut donner pour l’application du paragraphe (1).
|
[10]
However,
in this case, the Immigration Officer either simply had the material facts
wrong or failed to consider material evidence. The department’s own CIC Policy
Manual directs officers to consider family ties as part of the consideration of
personal circumstances.
[11]
The
Immigration Officer, while not bound in law by the Manual, conducted an
analysis of the personal circumstances and never addressed the existence of the
minor child.
[12]
Section
24 requires an officer to decide whether a TRP is justified “in the
circumstances”. That phrase must mean the relevant circumstances. Both the CIC
Policy Manual and the Immigration Officer’s own analysis (as well as the
Applicant’s submission) made family ties and the existence and interests of
children a relevant circumstance. The evidence of the minor child’s interest
was material to the case.
[13]
Therefore,
the failure to address the minor child was a legal error in failing to consider
the “circumstances” of this particular applicant.
[14]
For
this reason and this reason alone, this judicial review will be granted.
[15]
The
Applicant argued that the Immigration Officer failed to properly consider the
Applicant’s efforts and success at rehabilitation. I fail to see where there
was any error in this matter much less one in which the Court should intervene.
The record of rehabilitation is scanty and the Immigration Officer’s concern
for risk to Canadians is a reasonable one.
[16]
The
Applicant contends that he should have been given an interview because there
were issues of credibility concerning his rehabilitation. The Immigration
Officer’s concerns were more directly related to the sufficiency of the
evidence of rehabilitation rather than toward the credibility of the
Applicant’s contention.
[17]
A
TRP is an exceptional remedy and there is nothing in the process which, of
itself, would raise the issue of a right of interview to the level of
procedural fairness. There is nothing in the specifics of this case to suggest that
the absence of an interview created any unfairness. Indeed, not even the
Applicant requested an interview but merely said he was available for one if
the department wanted to interview him.
[18]
Any
errors in the creation of the certified record had no effect on this judicial
review. There is no basis for the Applicant’s complaint in this regard.
IV. CONCLUSION
[19]
Therefore,
this judicial review is granted, the decision is quashed and the matter
remitted to a different officer for a new decision. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the decision is quashed and the
matter remitted to a different officer for a new decision.
“Michael
L. Phelan”
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