Docket: IMM-385-16
Citation:
2016 FC 1407
Fredericton, New Brunswick, December 22, 2016
PRESENT: The
Honourable Mr. Justice Bell
|
BETWEEN:
|
|
ALLAN STEADMAN
CHAMBERS
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION AND
THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
|
Respondents
|
JUDGMENT AND REASONS
I.
Overview
[1]
In this single application for judicial review, Allan
Steadman Chambers [Mr. Chambers] challenges three decisions, which ultimately
led to a finding of his inadmissibility under paragraph 36(1)(a) of the Immigration
and Refugee Protection Act, SC 2011, c 27 [IRPA]. The three challenged
decisions are: (i) the immigration Officer’s decision to prepare a report
pursuant to subsection 44(1) of the IRPA to the Minister of Public Safety and
Emergency Preparedness’ delegate; (ii) the decision of the Minister’s delegate
pursuant subsection 44(2) of the IRPA to refer Mr. Chambers to an admissibility
hearing before the Immigration Division of the Immigration and Refugee Board
[the ID]; and (iii) the decision of the ID to order Mr. Chambers’ removal from
Canada.
[2]
The Respondents by way of preliminary motion
contend the Applicant cannot lawfully challenge the three impugned decisions
via one application for judicial review. The Respondents acknowledge that
challenges to all three decisions of this nature (subsections 44(1), 44(2) and
a removal order by the ID) are often heard at the same time as was the case in Hernandez
v Minister of Citizenship and Immigration, 2005 FC 429, [2006] 1 FCR 3 [Hernandez].
However, they note that in Hernandez the Court considered three separate
applications for judicial review with three separate file numbers which were
heard at the same time. The Respondents contend that the July 22, 2016 Order
granting leave to commence judicial review proceedings in the present case is
unclear as to whether leave is granted to challenge all three decisions or just
the ID removal order. The Applicant counters that this same issue was raised in
Clare v Minister of Citizenship and Immigration, 2016 FC 545, [2016] FCJ
no 513 [Clare]. In Clare, O’Reilly, J. disagreed with the
Minister’s contention. He concluded that, “[w]hile it
was open to Mr. Clare to seek judicial review of those other decisions, it was
not necessary to do so in order to challenge the ID’s decision on
admissibility”. While O’Reilly, J. acknowledged that in some cases
applicants had challenged multiple decisions through separate applications, he
did not interpret them as “requiring applicants to do
so in order to challenge the ID’s decision on admissibility”.
[3]
Mr. Chambers contends this issue has already
been disposed of by the judge who granted leave. I agree. Leave was granted on
the application as filed, without any limitation. The question is therefore
moot. However, by way of obiter, I would state that I agree with the
approach adopted by O’Reilly, J. in Clare. Only one application for
judicial review of the three section 44 decisions is necessary, because an
applicant will not know of the need to challenge the decisions until a removal
order has been made by the ID. Also, one application results in significant
savings in time, litigation costs and judicial resources.
[4]
As a result of that set out in paragraphs 2 and
3, I would dismiss the Respondents’ preliminary motion. However, for the
reasons which follow, I would dismiss the application for judicial review.
II.
Legislative Scheme
[5]
Subsection 36(1) of the IRPA sets out the test
for inadmissibility based upon grounds of serious criminality:
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.
[6]
Subsection 44(1) of the IRPA provides a very
broad discretion to an officer who is of the opinion that a permanent resident
is admissible. That section reads as follows:
44 (1) An officer who is of the opinion that
a permanent resident or a foreign national who is in Canada is inadmissible may
prepare a report setting out the relevant facts, which report shall be
transmitted to the Minister.
[7]
The subsection 44(1) report [section 44 report] is
then transmitted to the Minister, whose delegate may then decide to refer the
matter to the ID for consideration of a removal order (subsection 44(2)). I
note here that, pursuant to section 64, no appeal to the Immigration Appeal
Division is allowed.
III.
Facts
[8]
Mr. Chambers is a citizen of Jamaica. He arrived
in Canada on April 4, 2007 and is now a permanent resident. He is currently in
a relationship with a woman who is the mother of their one-year-old son. He
also has a twenty-one year-old son living in Toronto.
[9]
Since his arrival in Canada, Mr. Chambers has
been convicted of at least six violations of the Criminal Code, RSC
1985, c C-46 [the Code], two of which engaged subsection 44(1) of the IRPA. The
other crimes for which he was convicted were failure to comply with a probation
order (2 counts), failure to comply with a court order regarding judicial
interim release, theft under $5000.00 and possession of property obtained by
crime under $5000.00. The two crimes which engaged subsection 44(1), the first
of which was not the subject of a report, were uttering a forged document
contrary to section 368.1 of the Code in 2009 and robbery with violence
contrary to section 344 of the Code on July 8, 2015. It is this latter
conviction which triggered the section 44 process.
[10]
Shortly after July 8, 2015, the Officer visited Mr.
Chambers where he was being held. During this meeting, the Officer instructed
him to fill out the forms provided and left her business card. She said she
would be back to retrieve the completed documents at a later time. The Officer
returned in late August 2015 to retrieve the forms, and, during a brief
interaction, provided Mr. Chambers more information regarding his rights and
the section 44 process.
[11]
In November 2015, Mr. Chambers’ girlfriend
received a disclosure package from the Canadian Border Services Agency [CBSA] regarding
his admissibility hearing before the ID. Mr. Chambers contends that it is only following
receipt of those documents and retaining a lawyer that he learned he may face
deportation. However, this evidence is contradicted by the fact that he
received a warning letter from the CBSA in 2010 following his first reportable
conviction and by his responses to the questions in the forms provided to him during
the section 44(1) process. In those forms, Mr. Chambers indicated who would be
affected should he be removed from Canada, how he would be affected if removed
from Canada and wrote the following narrative: “If I
get a chance to stay in Canada I would be crime free. Anything the government
wants me to do to stay, I do it. I swear on my life.” In addition, upon
agreeing to a plea bargain with respect to the robbery, Mr. Chambers said that
his lawyer told him he “may get sent back to Jamaica”.
IV.
Impugned Decisions
[12]
In her section 44 report, the Officer reported
that Mr. Chambers was inadmissible pursuant to paragraph 36(1) of the IRPA. In her
narrative, she made reference to a warning letter Mr. Chambers received from
the CBSA in 2010 about his first reportable conviction. She noted that she
believed Mr. Chambers’ desire to attend a relapse prevention program to be
disingenuous; his only motivation being the risk of being deported. Further,
she stated that his failure to explain the circumstances of his July 2015
conviction was “concerning”. The Officer found
that Mr. Chambers showed a low prognosis for rehabilitation and a high risk to
reoffend. The Officer took into consideration Mr. Chamber’s family
circumstances, including his girlfriend, his one-year-old son in Canada and his
20-year-old son in Canada. She recommended a referral to an admissibility
hearing. On September 17, 2015, the Minister’s delegate referred Mr. Chambers
to the ID for the hearing. Following the admissibility hearing, the ID found
that Mr. Chambers met all the criteria to be found inadmissible under
subsection 36(1) of the IRPA and made a removal order against him.
V.
Issues
[13]
Mr. Chambers raises the following issues:
1.
Did the Officer observe the principles of
procedural fairness and natural justice?
2.
Was the referral decision reasonable in the
circumstances?
VI.
Standard of Review
[14]
It is trite law that when the standard of review
applicable to a question is settled, no further analysis regarding the
appropriate standard is required. Questions regarding the duty of fairness owed
by an immigration officer under section 44 attract the correctness standard of
review (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCJ No. 9; Cha v
Canada (Minister of Citizenship and Immigration), 2006 FCA 126, [2007] 1
FCR 409). That is, in the circumstances, was the duty of fairness met?
[15]
The ID’s decision and the antecedent steps
(subsections 44(1) and 44(2) analysis) taken toward reaching that decision are
measured against the standard of reasonableness. They must fall “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at
para 47) subject, of course, to any procedural fairness issues raised.
VII.
Analysis
A.
Duty of Procedural Fairness
[16]
Mr. Chambers contends the Officer failed to provide
him with appropriate procedural fairness during their initial meeting in July
2015. Instead of meaningfully explaining to him the nature and consequences of
a subsection 44(1) report, he contends the Officer simply dropped off the forms,
with her business card, and said she would return to retrieve the forms in a
week. Mr. Chambers expresses particular concern about the rapidity with which
the Officer wrote her report, which, he contends, demonstrated a failure to consider “his evidence and circumstances”.
[17]
The Respondents contend that procedural fairness
with respect to section 44 reports is “relaxed and
[consists] of the right to make submissions and to obtain a copy of the report”
(Richter v Minister of Citizenship and Immigration, 2008 FC 806 at para
18, [2009] 1 FCR 675). Mr. Chambers acknowledged in his affidavit that the
Officer left him forms “A44 (1) Inadmissibility Report -
Background and Personal Information Form” [PIF] and “A44 (1) Inadmissibility Report - Supplementary
Questionnaire” [Questionnaire]. He acknowledges he had approximately one
month within which to complete them. The Respondents’ position is that the
forms afforded Mr. Chambers the right to make submissions, he in fact made
submissions, and he received a copy of the report in order to prepare for the
admissibility hearing. The Respondents contend this procedure meets the
requirements of procedural fairness expected in the circumstances. I agree.
[18]
While I note that the Officer’s section 44
report was made on July 13, 2015, only a few days after having first interacted
with Mr. Chambers, this report simply indicated that Mr. Chambers was
inadmissible for serious criminality, having met all the criteria of subsection
36(1) of the IRPA. These facts alone were sufficient to make the recommendation
that Mr. Chambers be referred to an admissibility hearing. In addition, I note
that it was only on September 15, 2015, after having retrieved both forms from
Mr. Chambers that the Officer wrote her narrative and recommended to the
Minister’s delegate that he be referred to an admissibility hearing. Based upon
this sequence of events, I cannot accept Mr. Chambers’ contention that the
Officer did not consider his evidence and his circumstances. To summarize, the Officer
made the report on July 13 and wrote her narrative on September 15, 2015,
following which the Minister’s delegate considered the matter on September 17,
2015.
[19]
Mr. Chambers further contends that, given the
importance accorded to the description of the circumstances surrounding his
robbery conviction, the Officer should have asked him for more detail. I disagree.
The Questionnaire given to Mr. Chambers provided him the opportunity to provide
details about the robbery. In the context of a section 44 report, it is not an officer’s
duty to make further inquiries on an issue that the person has already had the
opportunity to address. In addition, I note that Mr. Chambers chose not to
answer the question regarding the details of the robbery. He chose simply to answer
the next question on the Questionnaire by stating that the conviction was “just and fair”.
[20]
I find the Officer met the duty of procedural
fairness required in the circumstances. In addition, there was no unfairness in
the manner in which the matter was handled by the Minister’s delegate or the
ID.
B.
Reasonableness of the Decision
[21]
Mr. Chambers contends the Officer, in her
section 44 report, failed to properly emphasize certain factors,
over-emphasized other factors, failed to consider the whole of the evidence
before her, and failed to properly consider the best interests of the minor child.
[22]
The Minister’s guidelines on the writing of
section 44 reports, “Enforcement Manual - ENF 5:
Writing A44(1) Reports”, indicates that an officer may consider the person’s
age at the time they became a permanent resident in Canada, the length of time
they have been in Canada, the location of their family support, and their
degree of establishment. The officer and the Minister’s delegate may also
consider humanitarian and compassionate [H&C] factors (Cha v Canada
(Minister of Citizenship and Immigration), 2006 FCA 126 at para 37, [2007]
1 FCR 409), although this is not mandatory.
[23]
In her report, the Officer clearly considered
Mr. Chambers’ age, his length of time in Canada, education and training,
criminal history, family situation, extended family, employment, health issues,
and circumstances of the latest reportable crime. With respect to humanitarian
and compassionate issues and best interests of the minor child, the Officer
stated:
It is acknowledged
that Mr. Chambers does have humanitarian and compassionate grounds to remain
in Canada, having a one year old Canadian born child and has submitted 2
letters of support from his girlfriend and his sister-in-law.
[My emphasis.]
[24]
Having considered the fact that Mr. Chambers
received a warning letter in 2010 and had “ample
opportunity to make changes in his life”, the Officer found that he
should be referred to an admissibility hearing. Although this was not the
outcome desired by Mr. Chambers, I find that it was reasonable in the
circumstances. It is not the role of the Court on judicial review to re-weigh
the evidence (Khosa v Canada (Minister of Citizenship and Immigration),
2010 FC 83 at para 37, [2010] FCJ no 99; Singh v Canada (Minister of
Citizenship and Immigration), 2008 FC 673 at para 10, [2008] FCJ no 864).
Furthermore, I find that the Officer was alert, alive and sensitive to the best
interests of the child. Such interests do not always outweigh other
considerations (Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, [1999] SCJ no 39 at para 75). Finally, I am satisfied with
the reasonableness of the Minister’s delegate and the ID’s decisions.
[25]
For the reasons herein, I would dismiss this
application for judicial review.
JUDGMENT
THIS COURT’S JUDGMENT is that the application for judicial review is dismissed without costs. No
question of general importance is certified for consideration by the Federal
Court of Appeal.
“B. Richard Bell”
Email this Content