Docket: IMM-2503-15
Citation:
2015 FC 1310
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 24, 2015
Present: The Honourable Madam Justice Gagné
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BETWEEN:
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VASQUEZ PENA
JULIAN RICARDO
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
Vasquez Pena applied for the judicial review of
a decision of an immigration officer of Citizenship and Immigration Canada
(CIC), made on May 12, 2015, refusing his application for permanent
residence submitted as a member of the “spouse or
common-law partner in Canada” class, for the reason that he is inadmissible
on grounds of criminality under paragraph 36(2)(b) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
II.
Facts
[2]
The applicant is a citizen of the Dominican
Republic. In October 2006, while he lived in New York State, he pleaded guilty
to a charge described in the New York State Penal Law as “attempted criminal possession of a controlled substance”.
The applicant recognized that he attempted to buy cocaine. On February 2,
2007, he was sentenced to two years in prison, followed by two years of parole.
This last period ended on June 20, 2010.
[3]
The applicant then brought a motion to withdraw
his guilty plea. He pleaded essentially that his lawyer had failed to advise
him of the impact of this plea on his immigration file. This motion was denied
on September 11, 2007, specifically on the ground that the applicant had
been informed by the Court, at the time that he entered his guilty plea, that
since he was not an American citizen, this plea could have an impact on his
immigration file.
[4]
The applicant arrived in Canada in 2010 and
filed a refugee claim, which was denied on December 8, 2011.
[5]
On February 2, 2012, he filed his application
for permanent residence in the spouse or common-law partner class.
[6]
On November 10, 2013, the immigration officer sent
him a so-called procedural fairness letter advising him of the possibility that
his request be refused for inadmissibility and invited him to make submissions in
this regard. At the outset of the hearing before this Court, counsel for the
applicant raised the fact that the Certified Tribunal Record contained two
different versions of this letter. However, it was admitted and agreed that it
was the one that was found at page 11 of the file that was sent to the applicant.
[7]
On December 16, 2013, the applicant replied to
the officer’s letter by a letter from his counsel, to which was attached an affidavit
of the applicant dated December 9, 2013. In this affidavit, the applicant explained
the circumstances surrounding his arrest and stated that he then found himself
in a [translation] “unfortunate situation that led to his arrest”, “that he did not know to what the sum of money that he was
asked to transport was allocated … and that he was not aware of the criminal nature
of the transaction”. The applicant also pointed out that he has not been
in trouble with the law since he served his sentence and that, since 2010, he
has had a serious romantic relationship with his Canadian common-law partner.
III.
Impugned decision
[8]
The immigration officer denied the applicant’s application
for permanent residence. She concluded that he was inadmissible in accordance
with paragraph 36(2)(b) of the IRPA, since the offence committed in the United
States is equivalent to an offence under an Act of Parliament punishable by an
indictable offence and a maximum term of imprisonment of at least 10 years.
The officer noted that she read the documentation from the American authorities
and the submissions made by the applicant.
[9]
The officer noted that, during the hearing in
which the applicant pleaded guilty, he admitted in clear terms that he
attempted to buy cocaine. She added that the transcript of the hearing revealed
that the applicant understood the nature of the proceedings, including the fact
that he was not coerced to plead guilty. She placed considerable weight on this
factor. The officer considered the fact that the applicant now lives a law
abiding life, but she added that to “be a good citizen is
expected of anyone and is not exceptional”.
IV.
Issues
[10]
This application for judicial review raises the
following questions:
A.
Did the immigration officer err in
finding that the applicant was inadmissible and in not considering the
applicant’s alleged rehabilitation?
B.
Did the officer err in not holding an interview
with the applicant?
V.
Analysis
A.
Inadmissibility and rehabilitation
[11]
The applicable standard of review to this
question mixed fact and law is that of reasonableness (Mugesera v Canada (Minister
of Citizenship and Immigration), [2005] 2 S.C.R. 100).
[12]
That said, the applicant did not dispute that he
is a person under paragraph 36(2)(b) of the IRPA. However, he argued
that the immigration officer erred in her analysis by not considering his rehabilitation,
in accordance with paragraph 36(3)(c) of the IRPA. The applicant argued
that he meets the criteria set out in paragraph 17(a) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (IRPR) that a period of more
than five years have elapsed since he completed his sentence. Therefore, the
immigration officer should have considered the nature of the offence, the circumstances
under which it was committed, the length of time which has elapsed since the offence
and any other previous or subsequent offences (Gonzalez Aviles v Canada (Minister
of Citizenship and Immigration), 2005 FC 1369 at para 18 (Gonzalez
Aviles)). Finally, she should have explained why she was not satisfied with
the evidence of rehabilitation presented to her.
[13]
Section 18 of the IRPR provides two rehabilitation
scenarios: (i) a person is deemed to have been rehabilitated if more than 10
years have elapsed since the sentence was completed; or (ii) a person can
convince the Minister of his rehabilitation if more than five years have
elapsed since the time that the sentence has been completed, by submitting the
documents required and by paying the fees provided for in paragraph 309(b)
of the IRPR. The applicant never submitted an application to the Minister to
convince him of his rehabilitation: he did not present the documents required
and did not pay the fees for processing his application.
[14]
Nevertheless, the officer considered the
applicant’s affidavit and the submissions of his counsel. She gave them little
weight and pointed out that the applicant had pleaded guilty, fully
understanding the nature of the alleged facts, proceedings and impacts of his
guilty plea on his precarious status in the United States.
[15]
I do not share the applicant’s view that Gonzalez
Aviles is determinative in this case. In this case, first, the officer did
not consider the evidence and the submissions made by the applicant and, second,
nearly 10 years had elapsed since she had finished serving her sentence.
[16]
In this case, the applicant could not have submitted
a rehabilitation application before 2015, since his sentence had not been served
on October 6, 2008, but rather in 2010, at the end of the two years of
probation. When a sentence includes incarceration and a period of parole, the
waiting period of five years runs from the date that marks the end of parole. Therefore,
the applicant could not have submitted a rehabilitation application at the time
when he filed his application for permanent residence in 2010 and the immigration
officer indeed had good reason not to consider the applicant’s affidavit and
his counsel’s submissions as such.
[17]
Given that the officer had no duty to consider
the applicant’s alleged rehabilitation, I find that his decision is reasonable.
B.
Failure to conduct an interview
[18]
The applicable standard of review to this question
of procedural fairness is that of correctness (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43).
[19]
Page 33 of Operational Manual IP 2, cited by the
applicant, indicates in fact that the immigration officers in the local CIC
offices [translation] “conduct interviews with sponsors and applicants, as required”.
Similarly, Operational Manual IP 8 at page 39 indicates that a “local CIC office may need to interview the applicant and/or
the sponsor to assess concerns raised by the CPC, including: … inadmissibility
for reasons of serious criminality or security”. These references apply
to an applicant for permanent residence or his sponsor. In this case, I agree
with the respondent that the officer had all the information required to find
that the applicant was inadmissible. There was no need for her to hold an interview.
[20]
Furthermore, the officer advised the applicant that
he would possibly be inadmissible. She allowed him to make submissions in this
regard and considered his submissions in her decision. In her fairness letter, the
officer did not suggest that she would hold an interview and the applicant did
not request one. Therefore, I am of the view that the immigration officer met her
procedural fairness duties.
VI.
Conclusion
[21]
For all these reasons, the application for
judicial review will be dismissed. The parties have proposed no question of
general importance for certification and this case does not give rise to any.
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