Docket: IMM-1698-16
Citation:
2016 FC 1363
Ottawa, Ontario, December 9, 2016
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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BRYAN ALBERTO
DISCUA MELENDEZ
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, Bryan Alberto Discua Melendez, is
a 21 year old citizen of Honduras who arrived in Canada as a permanent resident
on January 22, 2006 when he was ten years old. On January 12, 2015, he was
convicted of two offences under the Criminal Code, RSC, 1985, c C‑46,
an event which in turn resulted in him being referred to an admissibility
hearing before the Immigration Division of the Immigration and Refugee Board.
He has now applied under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c-27 [IRPA] for judicial review of the
decision to refer him to an admissibility hearing.
I.
Background
[2]
The Applicant currently lives in Burnaby,
British Columbia, with his girlfriend, his infant child, his mother, his two
younger sisters, and his younger brother. He is the principal source of
financial support for his family. His wife is unemployed and his mother cannot
work due to her disability.
[3]
On November 7, 2013, the Applicant, then 18
years old, was involved in two robberies and on January 12, 2015 he was
convicted of assault with a weapon and theft, contrary to subsection 267(a) and
section 334 of the Criminal Code, respectively. He received a
conditional sentence of fifteen months with a twelve month probation order.
[4]
On May 27, 2015, the Applicant received a letter
from the Canada Border Services Agency [CBSA], warning that a report under
subsection 44(1) of the IRPA might be prepared against him and advising
that he could make written submissions as to why a removal order should not be
sought. The next day, a CBSA officer [the Officer] issued a report under
subsection 44(1) which alleged that the Applicant was inadmissible to Canada on
grounds of serious criminality pursuant to paragraph 36(1)(a) of the IRPA.
On June 15, 2015, the Applicant’s lawyer asked the Officer to defer forwarding
the report until he could provide written submissions; the Officer agreed to
defer forwarding the report to a manager until July 6, 2015. Several weeks then
passed and on July 30, 2015, after receiving no submissions from the Applicant
or his lawyer, the Officer forwarded the report for managerial review by the
Minister’s delegate [the Delegate].
[5]
In the subsection 44(1) report, the Officer
reviewed the Applicant’s case history, including his arrival to Canada and the
events that had led to his Criminal Code convictions. The Officer noted
that the Applicant had confessed to the police and appeared “genuinely remorseful.” The Officer did not know
whether the Applicant had any extended family in Canada other than his mother
or whether his family was financially dependent on him. The Officer also noted
that the lack of submissions made it difficult to judge the Applicant’s
attitude towards the convictions and his potential for rehabilitation. The
Officer’s recommendation that the Applicant be convoked to an admissibility
hearing was accepted by the Delegate who, on August 21, 2015, referred the
Officer’s report pursuant to subsection 44(2) of the IRPA to the
Immigration Division for an admissibility hearing.
[6]
On March 21, 2016, a different lawyer for the
Applicant provided written submissions for consideration and requested that the
Applicant’s referral for an admissibility hearing be withdrawn. The Applicant’s
submissions requested the Officer to withdraw the report and instead issue a
warning letter in view of various humanitarian and compassionate [H&C]
factors. The Applicant provided financial information to show that he was the
principal source of income for his family and then pregnant girlfriend. The
Applicant outlined his family’s monthly expenses and detailed how his income
supported his girlfriend and family. The Applicant claimed it was not in the
best of interests of his two minor sisters (aged 4 and 10 at the time of the
submissions) and his then unborn child for him to be found inadmissible.
According to the Applicant, his inadmissibility, inability to work in Canada,
or removal from Canada, “would cause severe emotional
and financial hardship on his younger brother and sisters, and also his unborn
daughter once she is born.” The Applicant referred to Kanthasamy v
Canada (Citizenship and Immigration), 2015 SCC 61 at paras 36, 37 and 40,
[2015] 3 S.C.R. 909, the objectives of the IRPA, and Canada’s international
obligations, to urge the Officer to consider the best interests of his siblings
and unborn child, as well as his mother and girlfriend, in deciding whether to
refer the report to the Delegate. The Applicant requested that the Officer
exercise his discretion and issue a warning letter.
[7]
However, after considering the submissions, the
Officer again recommended that the Applicant be referred to the Immigration
Division for an admissibility hearing. The Officer amended his report on April
8, 2016, stating as follows:
On 22MAR2016, I was informed by HO MEDLY
that DISCUA legal counsel, Fritz Gaerdes, had provided submissions to CBSA at
the 21MAR2016 ADH hearing for consideration. The entire submissions package
(30 pages) was reviewed and considered. Included in the package were: a background
of DISCUA’s case, details regarding DISCUA’s unborn child and financial support
he provides his family, an affidavit from DISCUA and his girlfriend SANTALUCIA,
medical and financial documents.
The previously unknown information was
reviewed and considered. DISCUA’s provides his family financial support
through his gainful employment, his mother, brother, and two minor sisters live
in Canada, he has an unborn child who is due in August 2016, and he expresses
remorse for the offenses that he committed.
After reviewing all relevant information and
submissions, due [to] the seriousness of the offenses committed, I continue to
recommend that DISCUA be convoked to an Admissibility Hearing for the 36(1)
allegation.
[8]
The Delegate accepted the Officer’s recommendation
on April 14, 2016, noting the following on the subsection 44(1) report:
Refer to A.H. [Admissibility Hearing] (not
withdraw referral). Concur w/ recommendation. New submissions reviewed &
considered
[9]
On April 14, 2016, the Delegate referred the Officer’s
amended report to the Immigration Division for an admissibility hearing.
II.
Issues
[10]
This application for judicial review raises two
issues:
1.
What is the appropriate standard of review?
2.
Is the decision referring the Applicant for an
admissibility hearing reasonable?
III.
Analysis
A.
Standard of Review
[11]
It is well established that a decision to refer
a permanent resident to an admissibility hearing pursuant to subsection 44(2)
of the IRPA is reviewed on the reasonableness standard (see Faci v
Canada (Public Safety and Emergency Preparedness), 2011 FC 693 at para 17,
[2011] FCJ No 893 [Faci]; Richter v Canada (Citizenship and
Immigration), 2008 FC 806 at para 9, [2009] 1 FCR 675 [Richter], aff’d
2009 FCA 73, [2009] FCJ No 309). Similarly, the adequacy of the reasons for
such a decision is also reviewed on the reasonableness standard (Berisha v
Canada (Attorney General), 2016 FC 755 at para 18, [2016] FCJ No 726).
[12]
This being so, although the Court can intervene “if the decision-maker has overlooked material evidence or
taken evidence into account that is inaccurate or not material” (James
v Canada (Attorney General), 2015 FC 965 at para 86, 257 ACWS (3d) 113), it
should not intervene if the decision is intelligible, transparent, and
justifiable, and defensible in respect of the facts and the law: Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190. Those criteria are
met 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”: Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16, [2011] 3 S.C.R. 708.
B.
Is the decision referring the Applicant for an
admissibility hearing reasonable?
[13]
The Applicant argues that the decision is
unreasonable because it fails to consider whether there were H&C
considerations that favoured not referring the report to the Immigration
Division. The Applicant notes that the Operational Manual ENF 6: Review of
reports under A44(1) [the Manual] specifically contemplates H&C
considerations in cases involving permanent residents, since the Minister’s
delegate may consider such matters as the location of family support and
responsibilities and whether there are any family members in Canada who are “emotionally or financially dependent on the permanent
resident.”
[14]
The Applicant contends that a decision-maker’s
failure to consider the best interests of a child affected by the decision
renders their decision unreasonable. The Applicant submits that the Delegate in
this case completely failed to consider the best interests of the Applicant’s
unborn child and minor siblings. According to the Applicant, a mere statement
that the best interests of the minor children have been considered is
insufficient. The Applicant maintains that the Delegate and the Officer each
failed to expressly identify, define, examine, and weigh the best interests of
the Applicant’s minor age siblings and unborn child.
[15]
The Respondent argues that the Officer did not
have discretion to overlook the Applicant’s convictions and not prepare the
report, whereas the Delegate only had limited discretion to not refer the
matter to the Immigration Division. According to the Respondent, the Officer
did not have discretion to consider H&C grounds in preparing the report and
the Delegate reasonably exercised his limited discretion by considering the
H&C grounds raised by the Applicant. The Respondent submits that the
Applicant has the burden of proof to demonstrate the H&C grounds and, as a
result of the Applicant’s failure to discharge this burden, the Delegate
reasonably concluded that the H&C grounds raised by the Applicant did not
outweigh his criminality.
[16]
This case boils down to what discretion a
Minister’s delegate has pursuant to subsection 44(2) of the IRPA
not to refer a permanent resident, such as the Applicant, to an admissibility
hearing even if he has been found to meet the criteria set out in paragraph
36(1)(a). The jurisprudence is somewhat in flux on this issue inasmuch as the
Federal Court of Appeal has not yet had an opportunity to fully address and
resolve the issue. As noted in Canada (Public Safety and Emergency
Preparedness) v Tran, 2015 FCA 237, [2015] FCJ No 1324:
[12] Both parties agree that the
Minister’s delegate had some discretion, albeit a limited one, not to refer a
permanent resident such as Mr. Tran to an admissibility hearing even if he was
found to meet the criteria set out in paragraph 36(1)(a) (Hernandez v.
Canada (Minister of Citizenship and Immigration), 2005 FC 429, [2006] 1
F.C.R. 3, and chapter ENF 6 – Review of reports under A44(1) of the Citizenship
and Immigration Canada (CIC), Enforcement Manual (Enforcement Manual) (Joint
Book of Authorities, Vol. 4, Tab 113)). As this was not an issue before the
judge or this Court, I will assume for the purposes of this appeal only that
this is so. I note however that this is an issue that will need to be resolved
at some point in the future given our Court’s decision in Canada (Minister of
Public Safety and Emergency Preparedness) v. Cha, 2006 FCA 126 at para 41,
[2007] 1 F.C.R. 409.
[17]
In Hernandez v Canada (Minister of
Citizenship and Immigration), 2005 FC 429, [2006] 1 FCR 3 [Hernandez],
Justice Snider determined that both an immigration officer and a delegate of
the Minister have discretion under section 44, stating that:
[42] … I conclude that the scope of the
discretion of an immigration officer under s. 44(1) and of the Minister’s
delegate under s. 44(2) is broad enough for them to consider the factors
outlined in the relevant sections of the CIC Procedural Manual. To the extent
that some of these factors may touch upon humanitarian and compassionate
considerations, I see no issue.
[18]
It must be noted that Hernandez involved
a permanent resident, not a foreign national, as was the case in Cha v
Canada (Minister of Citizenship and Immigration), 2006 FCA 126, [2007] 1
FCR 409, where the Federal Court of Appeal concluded that:
[35] …the wording of sections 36 and 44
of the Act and of the applicable sections of the Regulations does not allow
immigration officers and Minister’s delegates, in making findings of
inadmissibility under subsections 44(1) and (2) of the Act in respect of
persons convicted of serious or simple offences in Canada, any room to
manoeuvre apart from that expressly carved out in the Act and the Regulations.
Immigration officers and Minister’s delegates are simply on a fact-finding
mission, no more, no less. Particular circumstances of the person, the
offence, the conviction and the sentence are beyond their reach. It is their
respective responsibility, when they find a person to be inadmissible on
grounds of serious or simple criminality, to prepare a report and to act on it.
…
[37] …It is not the function of the
immigration officer, when deciding whether or not to prepare a report on
inadmissibility based on paragraph 36(2)(a) grounds, or the function of the
Minister’s delegate when he acts on a report, to deal with matters described in
sections 25 (H&C considerations) and 112 (Pre-Removal Assessment Risk) of
the Act (see Correia at paragraphs 20 and 21; Leong at paragraph
21; Kim at paragraph 65; Lasin v. Canada (Minister of Citizenship
and Immigration), [2005] FC 1356 at paragraph 18).
…
[41] I appreciate that before the Standing
Committee the Minister and senior bureaucrats have expressed the view that
personal circumstances of the offender would be considered at the front end of
the process before any decision is taken to remove them from Canada (see Hernandez
at paragraph 18). I also appreciate that the Manual contains some statements
to the same effect (see Hernandez at paragraphs 20 to 23). However,
these views and statements were all expressed or made in respect of permanent
residents convicted of serious offences in Canada. No such assurances were
given by specific reference to foreign nationals. I need not, therefore,
decide what weight, if any, I would have given to such assurances in the
circumstances of the present case. Whether weight was properly given to such
assurances in Hernandez (where the issue was the scope of the Minister’s
delegate’s discretion to refer a report of inadmissibility in respect of
permanent residents to the Immigration Division), is a question better left for
another day. I note that questions were certified in Hernandez, but the appeal
has been abandoned (A-197-05).
[19]
More recently, the Federal Court of Appeal in Bermudez
v Canada (Citizenship and Immigration), 2016 FCA 131, [2016] FCJ No 468 [Bermudez],
observed that:
[44] … a number of decisions post Hernandez,
including decisions involving permanent residents, have tended to significantly
narrow the discretion contemplated at section 44 of the IRPA in Hernandez
(Nagalingam v. Canada (Minister of Public Safety and Emergency Preparedness),
2012 FC 141, [2012] F.C.J. No. 1517 (QL); Faci v. Canada (Minister of Public
Safety & Emergency Preparedness), 2011 FC 693, [2011] F.C.J. No. 893
(QL); Richter v. Canada (Minister of Citizenship & Immigration),
2008 FC 806, [2009] 1 F.C.R. 675; Spencer v. Canada (Minister of Citizenship
& Immigration), 2006 FC 990, [2006] F.C.J. No. 1269 (QL)).
[20]
It is helpful at this point, prior to assessing
the reasonableness of the referral decision in this case, to summarize some of
the relevant jurisprudence on the issue of whether an officer and the Minister’s
delegate have any discretion in the preparation and referral of a report under
section 44 of the IRPA, and if so, the extent of any such discretion.
[21]
As quoted above, Hernandez clearly states
that an immigration officer as well as the Minister’s delegate has discretion
to consider humanitarian and compassionate grounds under section 44 of the IRPA.
[22]
In contrast, in Richter, Justice Mosley
stated:
[12] As I noted in Awed v. Canada
(Minister of Citizenship and Immigration), 2006 FC 469, 46 Admin. L.R.
(4th) 233, the purpose of an interview under subsection 44(1) of the IRPA is “simply
to confirm the facts that may support the formation of an opinion by the
officer that a permanent resident or foreign national present in Canada is
inadmissible.” Where such facts are found to exist, the officer has a
responsibility to prepare a report and is not empowered by the statute to
exercise discretion.
…
[14] In respect of the Manager’s
decision to refer the report pursuant to subsection 44(2), the Federal Court of
Appeal held in Cha v. Canada (Minister of Citizenship and Immigration),
2006 FCA 126, [2007] 1 F.C.R. 409, that the scope of discretion available to
the Minister’s delegate was heavily dependant on the circumstances, including
whether the person subject to referral was a permanent resident or foreign
national. While a Minister’s delegate was found in Cha to have no
discretion in the case of a foreign national convicted of a serious offence in
Canada, the question was left open whether some minimal amount of discretion
was available to the Manager in deciding whether to refer the report to the
Immigration Division with respect to a permanent resident, as in this case.
[23]
In Faci, the Court stated:
[25] Lee v Canada (Minister of
Citizenship and Immigration), 2006 FC 158, and Richter v Canada
(Minister of Citizenship and Immigration), 2008 FC 806 (affirmed by the
Federal Court of Appeal), both indicate that the minister’s delegate may have
some discretion to consider humanitarian and compassionate factors but that the
decision under subsection 44(2) is not a full-blown humanitarian and
compassionate review. The general consensus seems to be that the Act provides
opportunities elsewhere for the applicant to raise H&C issues. [Emphasis
in original]
[24]
In Fabbiano v Canada (Citizenship and
Immigration), 2014 FC 1219, [2014] FCJ No 1262, the Court stated:
[15] The role of the Minister’s
delegate is to consider the evidence relevant to admissibility, and to exercise
his or her discretion in the circumstances, which may include H&C factors (Faci
v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC
693, at para 31). The latter are more significant in cases involving persons,
like Mr Fabbiano, who are long-term permanent residents of Canada. According to
departmental guidelines, a delegate should consider the person’s age, the
duration of his or her residence in Canada, family circumstances, conditions in
the person’s country of origin, the degree of the person’s establishment in
Canada, the person’s criminal history, and his or her attitude (see Citizenship
and Immigration Canada, “ENF 6 - Review of reports under A44(1)” at 19.2).
[25]
In Balan v Canada (Public Safety and
Emergency Preparedness), 2015 FC 691, [2015] FCJ No 688, the Court noted
that:
[26] … It is true that this Court, in Hernandez,
took the view that the Minister’s discretion is somewhat broader when deciding
whether to refer a permanent resident convicted of serious offences in Canada
to the ID. Unfortunately, the certified question pertaining to that issue was
left unanswered as a result of the appeal having been abandoned, and the
Federal Court of Appeal in Cha thought it best to leave that question
for another day. Be that as it may, it is probably safe to say that the
Minister’s discretion is relatively narrow under section 44, if only because
paragraph 36(1) (a) does not call for much judgment in its implementation. That
section is met as soon as a permanent resident or foreign national has either
been convicted in Canada of an offence with a maximum term of at least 10 years
or of an offence for which a term of imprisonment of more than six months has
been imposed…
…
[27] To the extent that sections 36(1)
(a) and 44(1) allow a residual discretion for the immigration officer to take
into account humanitarian and compassionate considerations, they have been
considered. The Officer extensively summarized the Applicant’s submissions in
this respect and obviously turned his mind to them….
[26]
More recently, in Pham v Canada (Public
Safety and Emergency Preparedness), 2016 FC 824, [2016] FCJ No 774, the
Court observed that:
[18] In deciding whether the case must
be referred to the ID, the Minister’s delegate did not conduct an in-depth
review of the humanitarian and compassionate considerations. Therefore,
although the Minister’s delegate is allowed a residual discretion to take into
account humanitarian and compassionate considerations (Balan, above, at
paragraph 27; Richter, above), the decision made by the Minister’s
delegate under subsection 44(2) of the IRPA is not a full in-depth review of
the humanitarian and compassionate considerations (Faci, above, at
paragraph 25). Insofar as the Minister’s delegate had this residual discretion,
he considered these reasons in a reasonable manner.
[27]
As noted by the Federal Court of Appeal in Bermudez,
decisions subsequent to Hernandez have narrowed the scope of discretion
as articulated in Hernandez. For example, in Rosenberry v Canada
(Citizenship and Immigration), 2010 FC 882, [2010] FCJ No 1101 [Rosenberry],
a case involving two citizens of the United States, the Court stated that:
[36] The substance of the decision did
not require the Minister’s delegate to consider the H&C application or
H&C factors at all. Under section 44 immigration officials are simply
involved in fact-finding. They are under an obligation to act on facts
indicating inadmissibility. It is not the function of such officers to consider
H&C factors or risk factors that would be considered in a pre-removal risk
assessment. This was recently confirmed in Cha v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 126 (CanLII), [2007] 1 F.C.R. 409 at
paragraphs 35 and 37.
[28]
In Finta v Canada (Public Safety and
Emergency Preparedness), 2012 FC 1127 at para 38, [2012] FCJ No 1214, a
case involving a foreign national, Justice O’Keefe reiterated his remarks in Rosenberry,
stating that “H&C factors are not relevant to the
section 44 admissibility process.”
[29]
In Nagalingam v Canada (Public Safety and
Emergency Preparedness), 2012 FC 1411, [2013] 4 FCR 455, the Court
concluded that:
[34] …the jurisprudence favours a more
restrictive approach to the discretion that an officer or a Minister’s delegate
has in considering mitigating or H&C factors at the section 44 level (Cha,
above; Awed, above; Richter, above; Correia, above).
[35] Based on the jurisprudence noted
above and the circumstances of this case, the Court cannot conclude that the
duty of fairness in a case like this one requires the Officer to allow for
submissions prior to the issuance of a subsection 44(1) report, or that the
Officer should, or even could, consider humanitarian and compassionate grounds.
The fact that the Minister’s delegate would not consider H&C factors during
this interview is consistent with the majority of the jurisprudence on this
issue, and consistent with the Federal Court of Appeal’s decisions. Therefore,
the Court finds no breach in procedural fairness that warrants its
intervention.
[30]
In Kidd c Canada (Sécurité publique et
Protection civile), 2016 CF 1044, [2016] ACF no 1022, the Court determined
that the Minister’s delegate has some discretion, but not the obligation, to
consider the factors set forth in the Manual in determining whether to refer an
inadmissibility report concerning a permanent resident to the Immigration
Division:
[33] Bien que le délégué du ministre
dispose d’une certaine discrétion pour déférer le dossier devant la SI, cette
discrétion est limitée par la loi. D’abord, la décision du délégué du ministre
n’a pas à examiner les considérations humanitaires. L’article 25(1) de la LIPR
ne trouve pas directement application, et le fait que des enfants puissent être
affectés par la décision du délégué du ministre n’entraîne pas d’obligation ou
de résultat particulier (Cha au para 38).
[34] Par ailleurs, si le Guide contient
effectivement une liste de facteurs, cette liste n’est pas exhaustive et ne
contient pas d’éléments obligatoires à être considérés dans la pondération de
la preuve faite par le délégué du ministre. Le délégué du ministre a ainsi le
pouvoir discrétionnaire, et non l’obligation, de prendre en considération les
facteurs énoncés dans le Guide (Faci au para 63). Or, il appert de la
décision elle-même que le délégué du ministre a soupesé l’ensemble des facteurs
en jeu. En fait, rien dans la décision n’indique ou ne suggère ici que le
délégué du ministre a omis de prendre en considération les facteurs pertinents
dans son analyse.
[31]
In Spencer v Canada (Minister of Citizenship
& Immigration), 2006 FC 990, [2006] FCJ No 1269 [Spencer], the
Court concluded that:
[15] The jurisprudence is inconclusive
as to the influence the factors outlined in the Policy Manual should have on
the officer’s discretion. Regardless of the aforementioned inconclusiveness, I
am of the opinion that officers can take the Policy Manual factors into
consideration when making a decision pursuant to subsection 44(1) of the Act,
but it is not their duty to do so.
[16] In the present matter, contrary to
the assertions of the applicant, I am of the opinion that the officer did take
into consideration humanitarian and compassionate factors and that his decision
was not solely based on the applicant’s criminal acts. The officer wrote the
following:
The writer is sensitive to the best
interests of subject’s Canadian-born children in this case, given that subject
will not have the right to appeal if ordered deported from Canada. The writer
believes that the serious nature of the offence far outweighs any consideration
to be given to the children. The writer notes that the children’s father has
himself relocated to Jamaica, and would apparently be able to continue to
provide the financial support he currently provides to them. While subject has
been incarcerated, the children have been in the care of subject’s mother.
These conclusions are supported fully in paragraphs 46 and 47 of the Ontario
Court of Appeal decision attached.
(officer’s
narrative report, Tribunal record at pages 3 and 4)
[17] In light of the above, I find that
the officer did not err in the exercise of his discretion. The officer’s notes,
which are being relied upon as reasons, disclose that all of the relevant
factors were considered prior to the applicant’s referral to a hearing.
[32]
It warrants note that the discretion afforded to
a Minister’s delegate’s under subsection 44(2) of the IRPA is
clearly recognized in the Manual, where it is stated that the delegate has
authority, even if the subsection 44(1) report is well-founded, “not to refer the report to the Immigration Division for an
admissibility hearing,” but, instead, send “a
warning letter” advising that “a decision could
be made to refer the report at a later date.”
[33]
In determining whether a subsection 44(1) report
involving a permanent resident should be referred to the Immigration Division,
the Manual suggests that a Minister’s delegate may consider a list of various
non-exhaustive factors, such as: age at time of landing; whether the permanent
resident was a child or an adult at the time of admission to Canada; length of
residence; location of family support and responsibilities; whether family
members in Canada are emotionally or financially dependent on the permanent
resident; whether all extended family members are in Canada; conditions in home
country; whether there are any special circumstances in the likely country of
removal, such as civil war or a major natural disaster; the degree of
establishment; whether the permanent resident is financially self-supporting,
employed or employable; whether the permanent resident has received social
assistance; whether the permanent resident has been convicted for any prior
criminal offence; whether the permanent resident has been cooperative and
forthcoming with information; whether a warning letter has been previously
issued; and whether the permanent resident is remorseful and accepts
responsibility for their actions.
[34]
In view of the foregoing, I arrive at the
following conclusions:
1.
There is conflicting case law as to whether an
immigration officer has any discretion under subsection 44(1) of the IRPA
beyond that of simply ascertaining and reporting the basic facts which underlie
an opinion that a permanent resident in Canada is inadmissible.
2.
Nevertheless, the jurisprudence and the Manual
do suggest that a Minister’s delegate has a limited discretion, when deciding
whether to refer a report of inadmissibility to the Immigration Division
pursuant to subsection 44(2) or to issue a warning letter, to consider H&C
factors, including the best interests of a child, at least in cases where a
permanent resident, as opposed to a foreign national, is concerned.
3.
Although the Minister’s delegate has discretion
to consider such factors, there is no obligation or duty to do so.
4.
However, where H&C factors are presented to
a delegate of the Minister, the delegate’s consideration of the H&C factors
should be reasonable in the circumstances of the case, and in cases where a
delegate rejects such factors, the reasons for rejection should be stated, even
if only briefly.
5.
The consideration of H&C factors by the
Minister’s delegate in respect of a permanent resident need not be, in my view,
as extensive as or comparable to an analysis of such factors under subsection
25(1) of the IRPA in order to be reasonable; it need not be so because
that would usurp the role and purpose of that subsection.
[35]
The Officer in this case summarized the “previously unknown information” in just one sentence:
“DISCUA’s provides his family financial support through
his gainful employment, his mother, brother, and two minor sisters live in
Canada, he has an unborn child who is due in August 2016, and he expresses
remorse for the offenses that he committed.” Immediately after this
sentence, the Officer wrote: “After reviewing all
relevant information and submissions, due [to] the seriousness of the offenses
committed, I continue to recommend that DISCUA be convoked to an Admissibility
Hearing for the 36(1) allegation.” The Delegate concurred with the
Officer’s report and noted that he had “reviewed and
considered” the Applicant’s submissions.
[36]
I find the referral decision in this case to be
unreasonable because the Officer’s written reasons and the Delegate’s
concurrence with those reasons are completely devoid of any analysis whatsoever
of the H&C factors raised by the Applicant, notably as to those in relation
to the best interests of the Applicant’s younger sisters and unborn child.
Indeed, nowhere in the Officer’s report or the Delegate’s comments is there
even any mention of these factors. Upon review of the reasons for the referral
decision, I cannot understand why the Delegate made the decision he did in the
face of the H&C factors raised by the Applicant.
[37]
Even if the Applicant’s submissions may have
required further detail, this Court on judicial review cannot speculate as to
why the Officer and, in turn, the Delegate rejected the Applicant’s submissions
which were clearly before them. This is not a case like Spencer where
the officer’s narrative report at least noted being “sensitive
to the best interests of subject’s Canadian-born children.” In this
case, the only mention whatsoever of the Applicant’s younger sisters and unborn
child is in the one sentence summary of the “previously
unknown information”. There is not even a perfunctory statement that
such interests were considered, let alone acknowledged, identified or assessed
in any manner whatsoever.
[38]
In the circumstances of this case, it was
insufficient and unreasonable for the Delegate to simply and only state that
the Applicant’s submissions had been “reviewed and
considered”. Neither the Delegate nor, for that matter, the Officer
provided any explanation as to why the Applicant’s submissions were
insufficient. The decision in this case is such that it is not possible to
determine whether the Delegate reviewed and considered the Applicant’s
submissions in a reasonable manner because neither the Delegate nor the Officer
offered any meaningful explanation as to why the Applicant’s submissions were
rejected.
[39]
It is true that the Delegate concurred with the
Officer’s statement that “due [to] the seriousness of
the offenses committed,” the Applicant should be referred for an
admissibility hearing. However, the seriousness of the offences committed is
not, in and of itself, a reason to reject and not engage, even if briefly, with
the Applicant’s submissions except to the extent of simply acknowledging that
they had been reviewed and considered. The seriousness of the offences
committed was stated as a standalone conclusion for which no reasons were
stated as to why this factor outweighed the various H&C factors raised by
the Applicant. The referral decision is unbalanced in this regard and,
consequently, unintelligible and cannot be justified in respect of the facts
and the law.
IV.
Conclusion
[40]
The referral decision in this case is not
reasonable and, accordingly, must be set aside and the matter returned to a
different delegate of the Minister. The referral notice under subsection 44(2)
of the IRPA for an admissibility hearing dated April 14, 2016 is
quashed.
[41]
Neither party raised a question of general importance,
so no such question is certified.
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