Docket:
IMM-12827-12
Citation: 2014 FC 18
Ottawa, Ontario, this 8th
day of January 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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PETER GREENE
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Applicant
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And
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THE MINISTER OF CITIZENSHIP
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AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision made by an Immigration Officer (the “officer”) on November 27, 2012.
The applicant, Mr. Peter Greene, sought a remedy under section 25 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the “Act”). Subsection 25(1)
reads as follows:
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25. (1) Subject to subsection (1.2), the Minister must, on request of
a foreign national in Canada who applies for permanent resident status and who
is inadmissible or who does not meet the requirements of this Act, and may,
on request of a foreign national outside Canada who applies for a permanent
resident visa, examine the circumstances concerning the foreign national and
may grant the foreign national permanent resident status or an exemption from
any applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
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25. (1) Sous réserve du paragraphe (1.2), le
ministre doit, sur demande d’un étranger se trouvant au Canada qui demande le
statut de résident permanent et qui soit est interdit de territoire, soit ne
se conforme pas à la présente loi, et peut, sur demande d’un étranger se
trouvant hors du Canada qui demande un visa de résident permanent, étudier le
cas de cet étranger; il peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
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[2]
In this case, the applicant is inadmissible
because of a criminal conviction (driving under the influence) he received in
the United Kingdom a few years ago. He is not eligible for rehabilitation until
September 2015.
[3]
The applicant married a Canadian citizen on July
2, 2011. They returned to Canada shortly after the wedding, which took place in
Ireland, and the applicant wishes to become a permanent resident, qualifying
as a “member of the spouse in Canada class”. His application under
section 25 of the Act is for the purpose of being allowed to make his
application for permanent residence in spite of the fact that he has not yet
been rehabilitated. Accordingly, he is still inadmissible but, in view of the
circumstances, believes that the inadmissibility should be lifted on
humanitarian and compassionate grounds.
[4]
It is not disputed that the relationship between
the applicant and his wife is genuine. Rather, the officer simply stated that
he was not convinced that there was undue and undeserved or disproportionate
hardship in this case. The better articulation of the reasons is found in the
GCMS notes which are part of the tribunal’s record. The paragraph reads:
Reviewed file and, in
particular, submissions from rep dated 03Apr2012, 24May2012, 23Jul2012 and 06Sep2012.
Reasons cited for H&C consideration include: - economic hardship if subject
were forced to leave Canada - establishment in Canada - strong tie to Canadian
spouse - low risk to Canada if allowed to remain I find that the information
provided is insufficient to prove that a refusal would result in undue and
underserved or disproportionate hardship. Subject has been allowed to enter and
remain in Canada on the strength of a temporary resident permit. Has been
issued a work permit that allows him to support himself and his wife. Appears
from the information provided by the rep, the conviction for the DUI in the U.K. was rendered on 16Sep2008 and the sentence included a 24 month driving
disqualification. The sentence was completed 16Sep2010, according to the rep.
Subject appears to be eligible to apply for crim rehab on 16Sep2015. Until
then, he can remain and work in Canada on the documents currently held. His
situation is neither undue and undeserved nor is it disproportionate. The
situation that resulted in his conviction was within his control. Request for
an A25 waiver for the criminality is hereby refused. Subject has been advised by
letter of refusal and requirement to renew/extend his TP and WP. Appears
subject may be currently outside Canada to visit his ailing father in Ireland. His whereabouts have not been confirmed.
[5]
It seems to me that the single issue in this
case is whether the decision made by the officer is reasonable in the
circumstances. The applicant has sought to make the argument that the adequacy
of the reasons given is a stand-alone ground for the Court to intervene. However,
that kind of argument is in my view not available anymore since the decision of
the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland
and Labrador Nurses’ Union]. I believe that the Court puts to rest that
notion. At paragraph 14 of the decision one can read:
[14] Read
as a whole, I do not see Dunsmuir [v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190] as standing for the proposition that the “adequacy” of
reasons is a stand-alone basis for quashing a decision, or as advocating that a
reviewing court undertake two discrete analyses – one for the reasons and a
separate one for the result […]. It is a more organic exercise – the reasons
must be read together with the outcome and serve the purpose of showing whether
the result falls within a range of possible outcomes.
[6]
It is certainly not expected that
decision-makers will provide chapter and verse in the reasons that they give for
the decision that they have made. It seems to me, however, that the test is to
be found at the end of paragraph 16 in Newfoundland and Labrador Nurses’
Union:
[16] .
. . In other words, if the reasons allow the reviewing court to understand why
the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.
[7]
I do not wish to substitute myself for the
decision-maker in making a determination that the applicant should have
received the benefit of section 25 of the Act. However, I need to be satisfied
that the decision made falls within the range of acceptable outcomes. In the
case at hand, indeed, I did try to supplement the reasons in order to
understand the decision reached.
[8]
The best that can be done is to say that the
decision-maker listed the arguments raised by the applicant and decided to find
them insufficient in view of the fact that a temporary resident permit had
already been issued to the applicant. As we know, that kind of a permit is very
much uncertain. Not only can it be revoked, but its renewal is always the
subject of a discretionary decision. Subsection 24(1) of the Act reads:
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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.
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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.
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[9]
There is no indication in the decision why such
a permit can be a substitute to the remedy of section 25. Indeed, the very
uncertainty that comes with the temporary resident permit cannot replace the
remedy of section 25 which is of course much more permanent.
[10]
The jurisdiction of the officer was to decide if
the humanitarian and compassionate grounds submitted by the applicant were
sufficient to warrant a remedy under section 25 of the Act. In choosing to rely
on a temporary remedy, the officer did not exercise the jurisdiction given by
law. At the very least, the officer did not explain why the grounds do not
suffice. The reasons read with the outcome do not show that the decision falls
within the range of possible outcomes.
[11]
It is not my purpose to suggest that the
discretion of the officer ought to have been exercised in favour of the
applicant in this case. It is for the officer to make the determination.
However, the law requires that I understand why the remedy was not granted and
simply suggesting that a temporary remedy, which is in and of itself very
uncertain, is an adequate substitute does not, in my view, satisfy the test. The
jurisdiction under section 25 was not exercised. There is nothing that I have
been able to find in the reasons offered by the officer to determine whether
the conclusion to deny is within the range of acceptable outcomes.
[12]
As a result, the judicial review of the decision
of the officer of November 27, 2012 is granted. The matter is to be remitted to
a different officer for the purpose of proceeding to a new determination. The
parties agreed that there is no question for certification. I agree.
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