Date: 20030303
Docket: IMM-884-02
Neutral citation: 2003 FCT 264
Ottawa, Ontario, Monday, this 3rd day of March, 2003.
Present: THE HONOURABLE MR. JUSTICE KELEN
Between:
HAMILTON WILTSHIRE
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the February 6, 2002 decision of Citizenship and Immigration Counsellor J. Levato, wherein she refused Mr. Wiltshire's application for permanent residence and declared a previous exemption from the requirement to obtain an immigrant visa granted to the applicant of no further effect.
[2] The applicant arrived in Canada in 1988 on a visitor's visa and later claimed refugee status. His claim was denied. In 1999, the applicant married a Canadian citizen and made a spousal application for landing in Canada on humanitarian and compassionate grounds ("H & C"). He was granted an H & C exemption on May 24, 2000. Due to past convictions of assault with a weapon and criminal harassment, the applicant was informed in a letter dated August 8, 2000 that his application for permanent residence could not be processed unless he obtained a pardon under the Criminal Record Act and provided Citizenship and Immigration Canada ("CIC") with a copy. The applicant did not respond. Another letter, dated May 22, 2001, was sent to the applicant requesting that he provide all court documents and certificates of convictions along with a copy of his pardon. When he failed to respond, a third letter, dated September 20, 2001, was sent. It stated:
Please be advised that the previously requested information must be mailed to our office no later than 30 days from the date of this letter. If we do not receive a response from you within the specified period of time, we will assume that you are no longer interested in pursuing your application and your application may be refused. In such a case, the Department has no authority to re-open this decision. [emphasis in original]
[3] The respondent did not receive any submissions from the applicant and made a decision on February 6, 2002 to refuse his application for permanent residence. A letter was sent to the applicant informing him of this decision. It stated:
As no written submission were received from you, the decision regarding your ability to comply with statutory requirements of the Immigration Act has been made on the basis of the information on your file.
From the information on file, it appears you are a person described in subsection 19(2)(a) of the Immigration Act. As such, permanent residence in Canada cannot be granted to you and your application for permanent residence must be refused. This means that the exemption from the requirement to obtain an immigrant visa originally granted in your case has no further effect. [emphasis in original]
[4] The applicant argues that this decision should be set aside for two reasons. First, he contends that he was given a legitimate expectation during his H & C interview that his application would be approved and that as long as continued with the pardon's process, he would not be found criminally inadmissible to Canada. He states that he has sought a pardon, but has encountered difficulties because he does not have any photo identification. The Court finds there is no basis for the applicant's alleged legitimate expectation. Correspondence from CIC made it abundantly clear that his application was dependent upon him providing the required information. The applicant failed to provide evidence to either CIC or this Court to support the claim that "his pardon application has been underway since 2000." The applicant could not have reasonably expected CIC to wait indefinitely for the requested information.
[5] The applicant's second submission is that the respondent erred by ignoring a letter he sent to CIC dated October 18, 2001. The letter informed CIC that he had paid for the pardon and was awaiting word from Pardons Canada on this application. The respondent states that it did not receive the letter until February 15, 2002, when it was included in a package faxed by the applicant's counsel.
[6] Evidence has been provided to corroborate the applicant's claim that he mailed the letter to CIC within the required time frame. The applicant produced satisfactory evidence that he contacted Pardons Canada and paid for a pardon on September 27, 2001, prior to October 18, 2001. The forms from Pardons Canada that have been produced by the applicant are dated and show proof of receipt by Pardons Canada. On the balance of probabilities, the Court finds that the applicant did send the letter to the respondent as he alleges.
[7] Counsel for the applicant has undertaken to expedite the pardon process, which was commenced in 2001. The Court will retain jurisdiction in this matter, and if the pardon is obtained by June 15, 2003, the Court will allow this application. Otherwise, the Court will dismiss the application. Counsel have agreed to advise the Court on or before June 16, 2003 of the status of this matter. A final order will be issued at that time disposing of this case.
"Michael A. Kelen" _________________________
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-884-02
STYLE OF CAUSE: HAMILTON WILTSHIRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: FEBRUARY 12, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE KELEN
DATED: MARCH 3, 2003
APPEARANCES BY: Mr. Richard M. Addinall
For the Applicant
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD: Mr. Richard M. Addinall
Barrister & Solicitor
203-1407 Yonge Street
Toronto, Ontario M4T 1Y7
Tel:416-484-9897
Fax:416-484-0161
For the Applicant
Ms. Stephen Jarvis
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario M5X 1K6
Tel:416-973-0444
Fax:416-954-8982
For the Respondent
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