De Freitas v. Canada (Minister of Citizenship and Immigration), docket IMM-4471-97

             THE COURT: The Court is ready to render a decision. This is an unfortunate case, an unfortunate case from the point of view of the applicant, who, in his juvenile immaturity, made some bad errors, but there is no provision in the law to say that errors made while a juvenile, or a young person, are all forgiven. The applicant challenges, by way of application for judicial review, the oral decision of Paul Tetrault, an immigration adjudicator, dated October 15th, 1997, wherein Tetrault determined that the applicant was not a permanent resident, and that he therefore had no alternative but to issue a deportation order pursuant to subsection 32(6) of the Immigration Act, RSC, 1985, CHAP. 1-28, which the Court refers to as the Act. Leave to commence an application for judicial review was granted on August 5th, 1998. The applicant, Devon Alwyn De Freitas, is a twenty-eight-year-old citizen of St. Vincent, a small Caribbean island just west of Barbados. The applicant came to Canada, and indeed to Toronto, where his parents already resided, on a visitor's visa on March 3rd, 1984. His visitor's visa was extended until March 19th, 1985. He was reported on February 5th, 1986 for overstaying his visitor status, however, his mother sponsored his application for permanent residence, and an order-in-council was granted in his favour on November 28th, 1986 allowing him to apply for permanent residence from within Canada, and therefore the inquiry notice was withdrawn. On September 4th, 1987, his sister and brother signed their permanent resident documents at the C.I.C. office in Mississauga, Ontario. The applicant had been expected to attend at this meeting as well, as mentioned in the application record in the statutory declaration of Mitsui Debra De Freitas, page nineteen. However, the applicant was unavailable because he was residing in a "Home For Boys" at that time, and the Department of Immigration never contacted him with regard to signing a record of landing. Now there is some vagueness there. One must assume that someone contacted the De Freitas children or their parents to come and sign the permanent resident documents. What is a "Home For Boys"? The Court has little choice in accepting that that means a juvenile detention centre to which the applicant had been committed for twelve months' secure custody. That is what his sister, whose affidavit is filed in support of his application, said, that he was in a "Home For Boys," at that time. The applicant speaks of involvement with the law, another euphemism like "Home For Boys." He means that he committed offences; that was his involvement with the law. He was convicted of assault with a weapon, possession of a weapon, and assault causing bodily harm in Toronto youth court. That is why he was in custody. And he was sentenced, as the file indicates, on January 10th, 1985, which would account for his being in custody for twelve months from then. Why he was in custody on September 4th, 1987 in a "Home For Boys" may mean that he had committed other offences later, after he was released. He has had several run-ins with the law. March 28th, 1988 he was convicted of three counts of uttering a forged document, on December 6th, 1990 of two other offences, and also on January 31st, 1991 of aggravated assault and possession of a weapon dangerous to the public peace. These latter offences make him an inadmissible person pursuant to paragraph 19(1)(c) of the Act, which renders inadmissible those persons convicted in Canada of offences carrying a maximum sentence of ten years or more. The applicant is presently lodged in Stony Mountain Institution, a federal penitentiary in Manitoba. An immigration inquiry for the applicant began in Edmonton on March 6th, 1996 and ended on December 16th, 1996 after the applicant failed to appear due to his latest arrest. The inquiry thereafter resumed on August 14th, 1997 in Winnipeg and was adjourned subsequently until September 11th, and finally until October 15th, 1997 when the decision of Adjudicator Tetrault was finally rendered. It is worth noting as well that the history of the applicant's immigration file is rather convoluted and kafkaesque; it is a paper trail which is kafkaesque. On June 26th, 1991 a certificate was signed by Jean Yves Prevost, an immigration officer and head of the Query Response Centre. That affidavit indicates that the applicant was recorded as having been issued a student authorization. On that same date, two other signed certificates indicate that he was recorded neither as having been admitted as a visitor as of January 1st, 1980 until June 26th, 1991, nor landed. However, on July 23rd, 1996 the applicant received a query response from the Query Response Centre in Hull stating that he is not recorded as ever having been a documented visitor or student, and further that he is not recorded as landed. Yet another certificate dated October 10th, 1997 and signed by Denis Bertrand indicates that the applicant is not recorded as landed for the period February 5th, 1986 to October 10th, 1997. On July 15th, 1996, Mr. Prevost was made aware of the contradictory certificates he signed and commenced an investigation. He determined that the January 23rd, 1996 searches were inaccurate as they were only conducted on the Field Operational Support System which he called FOSS, as if we would all understand what that meant without knowing what it stood for, and not on the micro-film files as well. After redoing the search, Mr. Prevost concluded on July 15th, 1996 that the applicant is not recorded as having been a visitor, but is recorded as having a student authorization from March 22nd, 1984 until March 19th, 1985 with no further extensions granted. As well, the applicant is not recorded as having been landed. The FOSS system does not indicate whether a file is active, archived or destroyed, but does show that file number 41336514 is a Winnipeg C.I.C. file and file number 3296-1-68202 is an Etobicoke C.I.C. file. The latter file was transferred to the Mississauga Record Centre in June of 1990, thus it was not in Etobicoke C.I.C.'s possession when the 1991 request was made. It should also be noted that this file was assigned a new number, 3294-6-7500, upon its transfer to Mississauga. Any remaining documents on file have been sent to the applicant's counsel in response to an access-for-information request and they reveal no record of landing having ever been prepared by the applicant. Perhaps the Court can be forgiven for having suggested this paper trail is kafkaesque. The oral hearing held before Adjudicator Tetrault on August 15th, 1997 resulted in a decision at that time. The applicant was determined not to be a permanent resident and a deportation order was issued pursuant to subsection 32(6) of the Act. The Adjudicator's reasons are a matter of record on the file and he certainly considered the Federal Court of Appeal decision in Dass v. The Minister of Citizenship and Immigration, which is reported at (1996) 193 NR 309, and the Adjudicator was concerned about that and finally made his decision. He says in his decision:

The applicant contends that the Adjudicator erred in law in determining that he was not a permanent resident. He argues that there is no statutory bar to facilitating his admission into Canada upon issue of the order-in-council dated November, 1986. The applicant's 1985 disposition arose pursuant to the Young Offenders Act, and as such is not treated as equivalent to convictions under the Criminal Code according to the immigration policy manual, applicant's record, page forty-one. Thus, the Adjudicator erred when he stated that the applicant could not have been landed because his convictions placed him in an inadmissible class. Of course, that does not mean that the applicant was a prize candidate for landed immigrant status or permanent residence in Canada because he was an offender, he had offended against the laws of Canada even though he cannot be fixed with a conviction under the Criminal Code. The applicant argues that he had a legitimate expectation that the Immigration Department would arrange for an alternate appointment to accommodate him and allow him to sign his permanent resident document. The applicant contends that the order-in-council issued in November, 1986 constitutes a promise by the respondent that his permanent residence application would be processed. No statutory bar is alleged to prevent his application, and thus his situation is in accordance with Federal Court jurisprudence on this issue, and especially he has cited Bendahmane v. Minister of Employment and Immigration, (1989) 8 IMM LR 2nd, page 20, also Shankaran v. MCI, a 1979 case in the Federal Court Trial Division, and Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629, the Judicial Committee of the Privy Council. The applicant also urges that any doubts as to his status should be resolved in his favour. The applicant argues that the respondent bears the responsibility of maintaining the applicant's immigration file, and its behaviour in this regard leaves much to be desired given the inconsistent information provided as to the applicant's status. Finally, he says, "It is unfair to consider the applicant's subsequent convictions because he had completed each element necessary for the process of granting permanent residence save for delivery of the document and signing it. The applicant asks for mandamus ordering the respondent to conduct a new inquiry by a different Adjudicator to make a decision on the merits of the applicant's case as the facts existed on September 4th, 1987, and he, of course, asks for certiorari and an order of prohibition prohibiting the Department from proceeding with removal.

             The respondent argues that the principles in Dass v. MEI, as cited, apply to the instant case. In that case, Mr. Justice Strayer held that a decision is taken to have been made when notice of that decision is given to the parties affected with some measure of formality. The Court goes on to state that judicial review cannot be sought of decisions which have never been communicated to the affected parties and that it is inappropriate for the Court to rummage through the file in order to determine that all landing requirements have been met, and therefore a positive determination as to landing must be deemed to have occurred at that time. The respondent contends that the C.I.C. has not lost the applicant's immigration file. The status of the file pales in regard to the substantive issues in this case, and whether it is absent in one office or has been lost or destroyed matters little in the Court's opinion. The respondent submits that the Adjudicator never made any finding that a youth conviction would bar permanent resident applications. The Adjudicator merely stated that an immigration officer must be satisfied that an applicant has no convictions. Well, of course that is true, and, in effect, the applicant had no convictions on September 4th, 1987, and so it is according to the immigration policy manual, which of course is not law, and by which the Court is not bound, but it appears to be correct. That manual states that pursuant to Section 36 of the Young Offenders Act, if a youth court directs that a youth is discharged absolutely, or if all dispositions concerning the offence, including a disposition to effect custody, have ceased to have effect, the young person is regarded as not having been convicted. However, a youth convicted in adult court does have a conviction within the meaning of the Immigration Act. Therefore an immigration officer must confirm or must be presented with the facts as to whether the youth has been tried in youth court and has been either discharged absolutely or has completed the sentence, before being satisfied that the youth has no convictions within the meaning of the Immigration Act. The onus in all of these matters is upon the applicant. The respondent disputes the applicant's argument of legitimate expectation. No evidence indicates that the applicant ever attempted to contact the C.I.C. to re-schedule his appointment, or that the C.I.C. refused to process his permanent residence documents, or that the applicant applied for mandamus between 1987 and 1988 to require the C.I.C. to complete the process. The C.I.C. never told the applicant that it would be sending documentation to him, and because he never appeared to review and sign the papers, he cannot expect the C.I.C. to deliver the record of landing. And the fact that he just didn't bother, that he didn't seem to give a rip in those years, or was unable because he was incarcerated, would seem to take care of the doctrine of legitimate expectations. No duty to resolve any doubts in favour of the applicant exists in this case, the respondent argues, because the applicant has not appeared with clean hands. He engaged in criminal behaviour as a youth, or offensive behaviour, if one flinches at the use of the word "criminal" as a youth, and since 1988 has increased his criminal activities. He is the author of his own misfortune. The respondent further submits that the affidavit evidence of Ingrid Pawlowsky, a senior immigration officer, contradicts the applicant's alleged legitimate expectation that he should be landed. She met with him on December 4th, 1991 at Stony Mountain Institution to determine his status because he had no record of landing and had been convicted of a serious criminal offence. He indicated to her that he chose not to continue processing his application for permanent residence "because he got caught up in the wrong crowd" and left for Edmonton for the next two years before being convicted in Winnipeg on January 31st, 1991 for aggravated assault and possession of a weapon dangerous to the public peace.

             The Court finds that the Adjudicator did not err when he found that the applicant was not a permanent resident, has never been granted citizenship, and that he is in that plight before the Adjudicator and before this Court. A visitor is someone who is seeking admission or has already been admitted to the country for a temporary purpose. To be admitted as a visitor, a person must obtain a visitor's visa by applying to a Canadian embassy or consulate outside of Canada. Persons from certain countries, however, are exempted from this requirement. In the instant case, the applicant came to Canada on a visitor's visa which had eventually expired on March 19th, 1985. He was given the benefit of an order-in-council on November 20th, 1986 which allowed him to apply for permanent residency from within Canada. On September 4th, 1987, both his sister and brother signed their permanent residence documents. The applicant, according to his sister, was supposed to attend as well but was subject at that time to some sort of state custody, the "Home For Boys." The Dass case is conclusive in this matter, in particular if one looks at a passage, a very short one, from Mr. Justice Strayer in that case, who says, and that applies particularly to the case at bar, that:

Here, it would seem that whether the applicant positively decided not to attend on September 4th, 1987, or willy-nilly was unable to attend because he was in custody as his sister deposed, in any event he appeared to have abandoned, one way or another, abandoned his application for landing, and certainly therefore had no legitimate expectation. But then one comes to Mr. Justice Strayer's remark, "After changes of circumstances, after he has been convicted of serious criminal offences, he is no longer eligible for landing." All the order-in-council did was to permit him to make an application for landing within Canada. That he might have done, and perhaps he did, but he chose, or was prevented because of his own misconduct, from completing that application; in fact, he abandoned it. And therefore, it seems to this Court that he has no legitimate complaint. It is always extremely tragic to see young people who, in the full flight of their immaturities, do stupid things and get themselves into trouble and get their exercise of what ordinarily would be ordinary rights aborted, as in this case, where the application for landing was aborted by being abandoned because the applicant either, according to his sister, was in a "Home For Boys," or according to his interview with Ms Pawlowsky, decided not to go through with it. And then he committed serious criminal offences and now he is no longer eligible for landing, never having been landed. Canada would have to be some sort of chump to be expected to accept a person such as the applicant as a landed immigrant, leading perhaps some day towards citizenship. He has shown himself to be someone who cannot abide by the laws of Canada, and rather than have him admitted and imprisoned who knows how often, Canada is entitled to say, "You shall not be admitted. You have had a chance, you have had two chances. You have had a chance as a young offender and as a young adult, and you have, in effect, not been fair to Canada. If Canada had some legitimate expectation that you would keep the peace and be of good behaviour, you have breached that legitimate expectation of Canada." And so while the Court can sympathize with the applicant, the Court cannot accede to his application for judicial review which will be dismissed.