Docket: IMM-675-17
Citation:
2017 FC 933
Ottawa, Ontario, October 19, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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JOSE FRANKLIN GONZALEZ TEJADA
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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.
Overview
[1]
This is an application for judicial review of a decision
by an immigration officer not to approve the Applicant’s application for
criminal rehabilitation under section 36(3)(c) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], the result of which was that he was found
inadmissible to Canada due to criminality and was denied permanent residency.
[2]
As explained in greater detail below, this
application is dismissed, because I have concluded that the decision is
reasonable, demonstrating transparency, justification and intelligibility, and
falling within the range of acceptable outcomes defensible in respect of the
facts and the law.
II.
Background
[3]
The Applicant, Mr. Jose Gonzales Tejada [Mr. Gonzales],
was born on July 4, 1969 and is a citizen of the Dominican Republic. He moved
to the United States in approximately 1987 with his grandparents. In 1989, Mr. Gonzales
was convicted in the United States of trafficking cocaine. He served 5 years in
custody, after which he was deported to the Dominican Republic in 1994. Mr. Gonzales
subsequently re-entered the United States illegally. He was charged with
driving under the influence of alcohol in October 2001. There is no record of a
finding of guilt or a conviction arising from this charge, which it is thought
was perhaps dealt with through a diversion program. Mr. Gonzales was arrested
in October 2004 and charged for illegal entry into the United States. After 1
year and 4 months in detention, he was once again deported to the Dominican
Republic in December 2006. He has no criminal record in the Dominican Republic.
[4]
Mr. Gonzales met his current common law spouse,
Nancy Kim Ternyik, in February 2009 in the Dominican Republic, where they were
coworkers. Ms. Ternyik is a Canadian citizen. Mr. Gonzales was granted a
Canadian visitor’s visa, and the couple came to Canada for 3 weeks in 2012.
They returned in July 2013 and again in November 2013, remaining in Canada
since that date.
[5]
Mr. Gonzales applied for permanent residence
under the family class with Ms. Ternyik as his sponsor in February 2014. He
failed to include information concerning his criminal record in this
application or in his prior visa applications. He did provide such information
in 2016 when Citizenship and Immigration Canada learned of his criminal history
and made requests concerning same. Shortly thereafter, he submitted an
application for criminal rehabilitation, the negative decision in which is the
subject of this application for judicial review.
III.
Issues and Standard of Review
[6]
The Applicant submits that the issue for the
Court’s consideration is whether the decision to deny his application for
rehabilitation was reasonable, looking at the totality of the evidence. In
advancing this submission, he argues that the immigration officer:
A.
Failed to properly consider all relevant
information;
B.
Took irrelevant information into consideration;
and
C.
Applied the incorrect test in making the
decision.
[7]
The parties agree, and I concur, that the
standard of review applicable to a decision on criminal rehabilitation is
reasonableness (see Thamber v Canada (Minister of Citizenship and
Immigration), 2001 FCT 177 [Thamber] at para 9).
IV.
Analysis
A. Whether the immigration officer failed to properly consider all relevant
information
[8]
Mr. Gonzales submits that the immigration
officer’s decision demonstrates consideration of only the negative factors
applicable to his rehabilitation request. He argues that the officer failed to
consider the evidence and submissions favourable to his application. In that
respect, he refers to the strength of his relationship with his common-law
spouse and members of her family and the extent to which he has been successful
in his employment since arriving in Canada. He also emphasizes his acceptance
of responsibility for his offence and the fact that the offence occurred
approximately 30 years ago, when he was 18 years old.
[9]
Mr. Gonzales relies on authorities of this Court
which overturned negative decisions on rehabilitation applications in circumstances
where the decision-maker failed to consider positive factors relevant to the
application(see Kok v Canada (Citizenship and Immigration), 2005 FC 77 [Kok];
Malicia v Canada (Citizenship and Immigration), 2003 FCT 170). He also
submitted, and I accept, that rehabilitation is forward-looking and that the
question the decision-maker is required to consider is the likelihood of
continuing criminal conduct (see Hadad v Canada (Citizenship, Immigration
and Multiculturalism), 2011 FC 1503).
[10]
In response, the Respondent refers to the
deferential standard of review to which the officer’s decision is subject and
emphasizes in particular need for to the Court, in considering the
reasonableness of the decision, to examine whether the decision is intelligible
and falls within the range of possible, acceptable outcomes (see Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47).
[11]
At the hearing of this application, counsel
assisted the Court by explaining that the Certified Tribunal Record [CTR] demonstrates
the involvement of two immigration officers in the process leading to the
decision on Mr. Gonzales’ rehabilitation request. One officer [the Recommending
Officer] analysed the application for rehabilitation and provided a
recommendation that it not be approved. That recommendation was considered by
another officer, described as a reviewing officer [the Reviewing Officer], who
concurred with the Recommending Officer’s negative recommendation, stating that
he or she was not satisfied that Mr. Gonzales was rehabilitated and that the
application was refused.
[12]
The CTR includes a document, bearing the title “Spouse or Common Law Partner in Canada Class,” which
appears to have been generated by the Recommending Officer and sets out the
background to the rehabilitation application, including references to Mr.
Gonzales’ criminal and immigration history and the development of his
relationship with Ms. Ternyik. This portion of the document includes the
following text:
Rehab application states ;
established- work
Support system wife and family
Passage of time
[13]
The next portion of this document is entitled “Rehab application reviewed:” and provides the
Reviewing Officer’s analysis, resulting in the negative recommendation. The
analysis portion of the document focuses upon Mr. Gonzales’ criminal and
immigration history, culminating with his misrepresenting information to the
Canadian government as recently as 2013 in applying for his visitor visa and
2014 in his application for permanent residence. The Reviewing Officer
concludes that this repeated pattern of behaviour supports a lack of respect
for the law which is not in keeping with the principles of rehabilitation.
Noting that the latter conduct may not be criminal in nature, the Recommending
Officer concludes that it demonstrates that a clear understanding of his past
behaviour has not been achieved and equally supports a possible continuance of
total disrespect and similar conduct.
[14]
The CTR also includes a document bearing the
title “Application for Criminal Rehabilitation”
which, under the heading “Reasons for recommendation,”
sets out essentially the same language as in the analysis by the Recommending
Officer described above but culminating with the statement that, for these
reasons, the Recommending Officer is not satisfied that Mr. Gonzales is
rehabilitated in spite of his now relatively stable living conditions.
[15]
The next section of the Application for Criminal
Rehabilitation, which sets out the comments of the Reviewing Officer, reads as
follows:
I concur w/ Officer’s negative recommendation.
Although I note the passage of time since conviction, as well as the
applicant’s stable lifestyle, I am not satisfied that he is rehabilitated. He
has misrepresented his criminal (and travel) histories to the Canadian gov’t on
his TRV and APR applications, only coming forward after learning that we have
information on his history in the USA. This suggests that he does not fully
take responsibility for his actions. I am therefore not satisfied that he is
rehabilitated. Refused.
[16]
My conclusion is that the record does not
demonstrate a failure to consider all relevant information that was before the
decision-maker. The Spouse or Common Law Partner in Canada Class document refers
to the positive factors upon which Mr. Gonzales’ application was based. While
the subsequent analysis portion of that document does not expressly refer to
those factors, the Recommending Officer’s analysis set out in the Application
for Criminal Rehabilitation does refer to his now relatively stable living
conditions. That document demonstrates that the Recommending Officer arrived at
the negative recommendation, notwithstanding Mr. Gonzales’ current stability,
because of his pattern of behaviour including relatively recent
misrepresentations to Canadian immigration authorities.
[17]
Similarly, the Reviewing Officer expressly notes
Mr. Gonzales’ stable lifestyle and the passage of time since his conviction but
concludes, based on his misrepresentations, that he does not fully take
response ability for his actions and is not rehabilitated.
[18]
The record demonstrates that both officers
involved in the decision making process were aware of the positive factors and
took them into account but concluded that they were outweighed by the
dishonesty associated with Mr. Gonzales’ misrepresentations to immigration
authorities. The question whether those misrepresentations were an appropriate
consideration to be taken into account is the subject of the next issue
addressed below. However, for purposes of the first issue raised by Mr.
Gonzales, I find no basis to conclude that all relevant information was not
taken into account in arriving at the decision to refuse his rehabilitation
application.
B.
Whether the immigration officer took irrelevant
information into consideration
[19]
Mr. Gonzales’ argument on this issue is that it
was inappropriate for the decision maker to take into account either his illegal
entry into the USA or the omissions in his Canadian immigration applications,
because these events relate to disregard of immigration law, not criminal law.
His position is that consideration of his application for criminal
rehabilitation should be limited to whether or not he is likely to reoffend
under a provision of criminal law.
[20]
I find little merit to this submission. I find
nothing unreasonable in the logic employed by both the Recommending Officer and
the Reviewing Officer, to the effect that willingness to disregard provisions
of immigration law are indicative of a lack of respect for the law in general,
failure to take responsibility for past criminal activity, and inconsistent
with a conclusion of rehabilitation. Moreover, this issue has been expressly
addressed by this Court in Cheung v Canada (Citizenship and Immigration),
2003 FCT 710 [Cheung], at para 20, in which Justice Russell held that
the immigration officer considering a rehabilitation application did not rely
upon an irrelevant consideration by taking into account the applicant’s past
dealings with Citizenship and Immigration Canada [CIC]. Rather, when evaluating
whether the applicant was likely to commit a criminal offense in Canada in the
future, it was reasonable for the officer to draw a negative inference from his
past disrespect for Canada’s immigration laws and his provision of false
information to CIC.
[21]
Mr. Gonzales attempts to distinguish Cheung
on the basis that the credibility of the applicant in that case was considered
questionable, while he submits that his own credibility has not been impugned.
I find no basis to distinguish Cheung. I note that Justice Russell’s
analysis of the Officer’s credibility finding in that case was conducted in
addressing an issue separate from the argument as to whether the Officer relied
upon in a relevant consideration in considering the applicant’s past dealings
with CIC. Moreover, in conducting his analysis of the credibility issue, Justice
Russell characterized the assessment of whether an applicant has accepted
responsibility as largely a matter of credibility and concluded that the
immigration officer acted reasonably in negatively assessing the applicant’s
credibility based on his vague and unsatisfactory answers to the officer’s
questions. In the present case, while the immigration officers involved in the
decision-making process did not expressly characterize their analysis as one of
credibility, the Reviewing Officer concluded, based on Mr. Gonzales’
misrepresentations to Canadian immigration officials, that he does not fully
take responsibility for his actions. Therefore, in both Cheung and in
the case at hand, the applicant’s lack of candour with immigration officials
resulted in the conclusion that the applicant had not taken responsibility for
past criminal conduct. In my view, the analysis in Cheung is directly
applicable to the present case.
[22]
Mr. Gonzales also referred the Court to the
decisions in Kok and Thamber as demonstrating negative
rehabilitation decisions being set aside in the context of administrative, as
opposed to criminal, offences. Again, I find that this argument does not assist
the Applicant. I do not read Thamber as turning in any way on the
relevance of administrative offences to a rehabilitation decision. In Kok,
the decision was set aside because the officer failed to consider highly
material evidence. While the negative rehabilitation decision in that case
turned on deceptions practised on Canadian immigration authorities, the Court
found that there were strong mitigating factors associated with those
deceptions, in that the evidence was that the applicant was attempting to
escape human rights violations in China. No comparable mitigating factors apply
in the case at hand.
[23]
I therefore find that the analysis based on Mr.
Gonzales’ disregard of immigration laws is reasonable and does not represent a basis
for the Court to interfere with the negative rehabilitation decision.
C.
Whether the immigration officer applied the
incorrect test in making the decision
[24]
Mr. Gonzales argues that the negative decision
resulted from application of the wrong test to the assessment of whether he was
rehabilitated. He submits that the applicable test is whether the risk of
criminal activity is “highly unlikely”,
referring to Thamber, at para 16, and Lau v Canada (Citizenship and
Immigration), 2016 FC 1184 [Lau], at para 24. Lau does
describe the test in this manner, relying on language in the applicable CIC
Operation Manual. Thamber refers to what appears to be an older version
of the manual in describing rehabilitation as meaning that the risk of further
criminal activity is assessed to be “unlikely”.
[25]
Regardless of whether the applicable threshold
is “likely” or “highly
unlikely”, Mr. Gonzales submits that the decision employs language which
suggests the application of an even more stringent test. He notes that, in the
analysis leading to the negative recommendation, the Recommending Officer
states: “The submissions provided in support of
rehabilitation do not completely satisfy me that the applicant is
rehabilitated” [emphasis added.] Also, after referring to Mr. Gonzales’
misrepresentations to Canadian immigration authorities, the Recommending Officer
states that this “equally supports a possible
continuance of total respect and similar conduct.” [emphasis added.]
[26]
Mr. Gonzales argues that the Recommending
Officer’s requirement that he be completely satisfied of his rehabilitation is
inconsistent with the applicable test, which does not require certainty, only probability
or even high probability that he will not reoffend. Similarly, he submits that the
officer’s concern about the possibility of future criminal conduct suggests a
misunderstanding of the test as, even if the risk of reoffending is highly
unlikely, there is still a possibility that further offences will occur.
[27]
I follow the logic of these submissions and, if
the decision to refuse Mr. Gonzales’ rehabilitation application had been made
by the Recommending Officer, this might have represented a basis to set aside
the decision. However, as argued by the Respondent, the decision was made by
the Reviewing Officer, and there is no indication in that analysis that the
Reviewing Officer misunderstood the applicable test. While the Reviewing
Officer indicates concurrence with the Recommending Officer’s negative
recommendation, the Reviewing Officer sets out his or her own analysis
(reproduced earlier in these Reasons) and states that he or she is not satisfied
that Mr. Gonzales is rehabilitated.
[28]
Mr. Gonzales points out that, in arriving at
this conclusion, the Reviewing Officer refers to Mr. Gonzales’
misrepresentations and states: “This suggests that he
does not fully take responsibility for his actions” [emphasis
added.] Mr. Gonzales argues that the use of the term “fully”
indicates that the Reviewing Officer’s analysis is tainted by the Reviewing
Officer’s misunderstanding of the applicable test. I disagree with this
argument, as the use of the term “fully” by the
Reviewing Officer relates to whether Mr. Gonzales has taken responsibility for
his actions, not the assessment of the likelihood of him reoffending.
[29]
As such, the record does not support a
conclusion that the Reviewing Officer, who was the actual decision-maker, applied
an incorrect test in making the negative rehabilitation decision. The Reviewing
Officer’s analysis is transparent, justified and intelligible, falls within the
range of possible, acceptable outcomes in respect of the facts and the law, and
is therefore reasonable.
V.
Proposed Certified Question
[30]
Mr. Gonzales proposed the following question for
the Court’s consideration for certification for appeal:
What is the role of public administrative
offences in determining the time frame of whether the applicant re-offended?
[31]
Mr. Gonzales emphasizes that this Court has explained,
at paragraph 17 of Thamber, that the time frame since the last offense
is the most important factor to consider in assessing a rehabilitation
application. The Respondent took the position that, unless a decision to allow
this judicial review turned on this issue, this question should not be
certified, because the answer is obvious and well-established through applicable
case law (see Cheung).
[32]
I agree with the Respondent’s position. As there
is no uncertainty in the case law, this question does not rise to the level of
a question of general importance (see Nacsa v Canada (Minister of
Citizenship and Immigration), 2004 FC 91at paras 40-41). It is therefore
not an appropriate question for certification for appeal.
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