Hewitt v. Canada (Solicitor General), 2005 FC 790

Date: 20050601

Docket: IMM-5001-04

Citation: 2005 FC 790

BETWEEN:

TIMOTHY HEWITT

Applicant

- and -

THE SOLICITOR GENERAL OF CANADA

Respondent

REASONS FOR ORDER

O'KEEFE J.

[1]    This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") of the April 1, 2004 decision of the Minister's delegate to refer the applicant to an admissibility hearing under subsection 44(2) of IRPA.

[2]    The applicant seeks an order:

1.          Setting aside the referral under subsection 44(2) of IRPA for an admissibility hearing signed April 1, 2004 by the Minister's delegate;

2.          Setting aside the deportation order dated May 20, 2004;

3.          Directing Citizenship and Immigration Canada to reconsider anew the making of the report and referral for admissibility hearing;

4.          In the alternative, a stay of deportation until such time as an application for permanent residence on humanitarian and compassionate ("H & C") grounds can be determined; and

5.          Such further and other order as the Court may allow.

Background

[3]    The applicant, Timothy Hewitt (the "applicant"), is a citizen of the United Kingdom who was granted permanent resident status in 1964 at the age of three.

[4]    The applicant has a nine year old son. Prior to his convictions in 2003, the applicant had been employed with Canadian Pacific Railway for twenty years, and later with Ipsco Steel for approximately 14 months.

[5]    On May 15, 2003, the applicant was convicted of several criminal offences including 14 counts of robbery, one count of trafficking pursuant to the Controlled Drug and Substances Act, 1996 c.19, one count of possession of property obtained by crime under $5,000.00 pursuant to paragraph 354(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c.C-46, two counts of uttering a forged document pursuant to section 368 of the Criminal Code, supra, and one count of failure to comply with undertakings pursuant to subsection 145(3) of the Criminal Code, supra. The totality of the sentence received was four years.

[6]    The applicant's criminal situation became known to immigration officials who began the process of removal under section 44 of IRPA, inadmissibility for serious criminality.

[7]    On August 15, 2003, two officers from Citizenship and Immigration, Louise Collette and Janet Norty, visited the applicant at Rockwood Institute to interview him.

[8]    On August 27, 2003, immigration officer Louise Collette reported the applicant under subsection 44(1) of IRPA for being inadmissible pursuant to paragraph 36(1)(a) of IRPA on the basis of his convictions for trafficking and robbery.

[9]    On October 24, 2003 in a memorandum to the "Director, Case Review, case management Branch, NHQ" for Citizenship and Immigration Canada, officer Collette recommended that the applicant be referred to an admissibility hearing, the likely result of which would be the issuance of a removal order against the applicant. The recommendation was concurred in by the Director of CIC Winnipeg, John Nychek, on November 3, 2002.

[10]                        On November 20, 2003, officer Collette sent the applicant a letter advising him that a decision as to whether or not to seek a removal order against him by sending him to an admissibility hearing would be made soon, and that he could make written submissions on the matter within 15 days of receiving the letter. On or about December 11, 2003, submissions were completed and submitted.

[11]                        On April 1, 2004, a decision was made to refer the applicant to an admissibility hearing. The hearing took place on May 20, 2004, and the applicant was found to be a person described in paragraph 36(1)(a) and ordered deported by P.Kyba.

[12]                        The applicant is currently an inmate at Stony Mountain Penitentiary in Stony Mountain, Manitoba.

[13]                        The applicant filed an amended application for leave and for judicial review pursuant to the order of the Court dated August 18, 2004, and now includes the request for an order setting aside the referral under subsection 44(2) of IRPA for an admissibility hearing signed April 1, 2004 by the Minister's delegate.

Issues

[14]                        The issues as framed by the applicant are:

1.                                                                                                                      Do the errors and omissions of the immigration enforcement officer L.Collette, render the report under subsection 44(1) and the decision of the Minister's delegate patently unreasonable?

2.                                                                                                                      Did the failure to provide the applicant with the memorandum prepared by Officer Collette, dated October 24, 2003, constitute a breach of procedural fairness?

Applicants'Submissions

[15]                        The applicant does not dispute the contents of the report dated August 27, 2003 by Louise Collette in light of subsection 44(1) of IRPA. The applicant submitted however, that the reasons for the recommendation and conclusions were not made with due consideration for the facts. The applicant submitted that the following examples show that the report was premised on factual errors:

1.                                                                                                                                At the interview, officer Collette asked the applicant simply, "Do you have family

in Canada?". The officer then concluded in her memorandum that the applicant ". . . does not have close ties or a significant relationship with his immediate family who reside in Manitoba. His siblings do not participate in the Private Family Visiting program offered at the Institution".

The applicant submitted that in fact there was then and continues to be now a significant relationship between himself and his immediate family.

His family did not visit him at the time of the interview because he had just moved to Rockwood Institute and his visitation documents were in process. The Immigration officer did not ask why visitation was or was not taking place, not did she ask about any other contact with the applicant's family. Her conclusion was speculation unsupported by any facts. Further, the officer relied on older information from the penitentiary the applicant had been in prior to the current one.

2.        The immigration officer also noted that "After questioning Mr. Hewitt

about his offences he admitted to being involved in one single offence in Regina, Saskatchewan and that he was the "driver"of the vehicle when the offence was committed. Mr. Hewitt was not forthcoming with the declaration of multiple offences and did not admit nor express remorse for his offences."

The applicant submitted that robbery was the offence that meted out the four year

sentence that landed the applicant in a federal penitentiary. While the answer needed clarification, it did not indicate that the applicant was lying or being evasive. Further, there were no questions asked at the interview that would have prompted the applicant to make any statements of remorse.

3.         The immigration officer concluded that "Prior to his incarceration, Mr. Hewitt

was allowed supervised visitation with his biological son and subsequently chose not to partake in the visitations. It appears Mr. Hewitt does not have a significant relationship with his son."

            The applicant submitted that no questions were asked of the applicant at the time of his interview concerning his relationship with his son and any reasons why he may not have contacted his son at that time. Further, he in fact did have a significant relationship with his son, and quit his job with the CPR to be closer to his son. There was a very short time where the applicant did not have contact with his son due to incarceration.

4.       The immigration officer concluded that "Mr. Hewitt who lost his job due

to substance abuse, has difficulty staying employed and will likely resort to crime to obtain money for drugs".

The applicant submitted that the conclusion was not based on facts. He had been employed by the CPR in Winnipeg for 20 years, he was a full-time employee and later worked for Ipsco Steel in Regina. He had only been on social assistance for one month in February 2003 and had never been on Employment Insurance. As he was in jail at the time of the interview, he was not in a position to undertake any work outside of the institution.

[16]                        The applicant submitted that if the officer does write a report under subsection 44(1), then it is incumbent on an officer to base any conclusions on fact and not speculate as to what the facts might be in the memorandum. The officer had the opportunity to ask further questions to clarify any information that was not forthcoming in response to the questions she did ask.

[17]                        The information of the immigration officer is crucial in the Minister's assessment of whether or not to refer the matter to an admissibility hearing under subsection 44(1) of IRPA . Officer Collette's memorandum of October 24, 2004 was relied on and used to influence the decision of whether or not the admissibility hearing would take place. Because the facts set out were in error and conclusions were speculative and were not based in fact, this caused prejudice to the applicant and ultimately resulted in a referral to an admissibility hearing. The applicant submitted that in light of the Board's narrow jurisdiction under section 45 of IRPA, and the lack of an appeal to the Immigration Appeal Division, the immigration officer must ensure the conclusions are based on fact and are procedurally fair.

[18]                        The applicant further submitted that because of the seriousness of the report under subsection 44(1), a full and fair disclosure to allow rebuttal of perceived mischaracterizations, a failure to provide the information contained in the memorandum constitutes a breach of procedural fairness (see Andino v. Canada (Minister of Citizenship and Immigration), [2001] FC 70. If the documentation had been provided a more meaningful opportunity would have existed to provide a more complete argument as to the situation of the applicant. This applies regardless of whether, as the respondent suggested, the decision to refer the person to an inquiry is purely administrative action.

[19]                        If an applicant can only gain access to the information through a request under the Privacy Act, R.S.C. 1985, c. P-20, the information will inevitably be received after the 15 day time limit for written submissions, as under section 14 of Privacy Act, supra , subject to an extension, a request must be responded to within 30 days.

[20]                        The applicant submitted that Officer Collette failed to advise him of a right to counsel. This was born out in the cross-examination of Officer Collette where she confirmed they did not advise him of his right to counsel at the start of the hearing. The applicant was misled as to the nature of the interview, and the use of the information he was giving at the interview. He was not given an opportunity to clearly make an assessment of whether he required legal counsel.

Respondent's Submissions

[21]                        The respondent submitted that decisions to refer under section 44 of IRPA are purely discretionary and should be afforded a wide degree of deference. The respondent submitted that the Federal Court of Appeal in Kindler v. MacDonald, [1978] 3 F.C. 34 (F.C.A.), in dealing with section 27 under the former Immigration Act, R.S.C. 1985, c. I-2, said that the Minister's decision to refer a person to an inquiry was a "purely administrative decision . . . [the] Deputy Minister has only to decide that an inquiry is warranted, which he would do on the existence of a prima facie case . . .". The Court also stated that a decision by the Deputy Minister directing a person to an inquiry is merely a decision with respect to a person, it is not a decision against the person. Accordingly, it would be ludicrous to require even a paper hearing with respect to the decision of whether to hold a hearing.

[22]                        The respondent submitted that the absence of a removal order appeal under IRPA does not distinguish Kindler, supra, or enrich the procedural content of decisions to report and refer as suggested by the applicant. Section 64 of IRPA indicates that Parliament's intent was to accelerate the process of removing serious criminals and to narrow the scope of procedural fairness relevant to making removal orders against them. Importing procedural safeguards like notice and disclosure requirements, and the right to make submissions at the referral stage, is plainly contrary to Parliament's intent. It also ignores the fact that the applicant has alternative statutory remedies.

[23]                        The respondent submitted that this Court in Leong v. Canada (Minister of Citizenship and Immigration), 2004 FC 782, has held that procedural fairness was not breached by not allowing counsel to make submissions before a subsection 44(2) referral was made. In the case at bar, counsel was allowed to make submissions. If there is not even a right to make submissions prior to a referral decision, then there can certainly be no additional right to disclosure with an opportunity to make submissions on the disclosed material prior to a subsection 44(2) referral decision.

[24]                        The respondent further submitted that as the language of section 44 indicates that the tests are subjective, the Court should adopt a deferential approach. The respondent submitted that the duty of fairness owed in respect of a decision to refer under subsection 44(2) of IRPA is low and does not include the rights urged by the applicant.

Alleged errors and unsubstantiated conclusions in the memorandum

[25]                        The respondent acknowledged that the decision is based primarily on the report itself. In the recent decision of Poonwalla v. Canada (Minister of Citizenship and Immigration), 2004 FC 371, which dealt with a challenge to the decision of a Minister's Delegate to refer a report to the Minister recommending an admissibility hearing pursuant to subsection 44(2) of IRPA, the Court held that " . . . The question is not whether the Minister's delegate properly applied the guidelines or gave enough weight to relevant factors, but whether there is any evidence that Ms. Hill failed to consider the appropriate factors. . . ."

[26]                        The respondent submitted that in the alternative, the memorandum is not flawed as alleged.

The applicant's relationship with his family

[27]                        The respondent submitted that officer Collette did not have an obligation to interview the applicant, let alone elicit any particular information from him. The purpose of the interview was to establish the applicant's status in Canada. Moreover, the applicant had an opportunity to, and did, provide information about his relationship with his family, including counsel's submissions, and letters from his father , one brother and two sisters. to the Minister's delegate. Thus, the Minister's delegate would have considered the applicant's relationship with his family, as put forth by the applicant and his family members themselves.

The applicant's attitude regarding his convictions

[28]                        The respondent submitted that when asked whether he had ever been convicted of a crime in Canada to which he answered yes- armed robbery, he did not mention any of the other four offences for which he was convicted. When asked what had happened, he did not explain what lead to him being there, instead he simply stated that he had been charged in Regina with armed robbery, that he had been the driver and that he had a co-accused. Further, officer Collette stated that the conclusions in her memorandum were based not only on her interview with the applicant, but to a great extent on documentation from Saskatchewan Penitentiary, passages from which were consistent with the manner in which the applicant explained his situation, that is, to minimize his wrongdoing.

The applicant's relationship with his son

[29]                        The respondent submitted that the applicant did not dispute that he only had supervised visitation with his son and that he ceased visitation prior to being incarcerated, and this substantiated the officer's conclusion. Further, the applicant's brother told Corrections staff that he believed that the applicant had decided to postpone having a relationship with his son until the son was older and capable of making his own decisions. Therefore, the officer's statement was based on evidence before her.

Addiction, loss of employment and susceptibility to crime

[30]                        The respondent submitted that officer Collette's statements were based upon and supported by documentation from Saskatchewan Penitentiary.

Respondent's further memorandum of argument

[31]                        The respondent submitted that if this Court finds that there was any breach of procedural fairness then this is one of those rare cases where a remedy should be denied despite any breach. There is no purpose to be served in repeating a process to end at the same result, which, given the facts of this case and the jurisprudence of this Court, would be inevitable (see Correia v.Canada (Minister of Citizenship and Immigration), (2004), 253 F.T.R.).

[32]                        The respondent submitted that all of the alleged errors in the memorandum relate to

H & C factors. However, neither officer Collette nor the Minister's delegate have jurisdiction to consider H & C factors under section 44 of IRPA. As such, any errors that may have been made in assessing these factors are immaterial because they have no effect on the validity of the decision to refer the applicant to an admissibility hearing (see Correia supra and Leong, supra).

[33]                        The respondent submitted that two of the four alleged errors in the memorandum were not relied on by the Minister's delegate. Specifically, (i) officer Collette's opinion that the applicant did not have close ties or a significant relationship with his immediate family who reside in Manitoba, and (ii) officer Collette's opinion that the applicant "who lost his job due to substance abuse, has difficulty staying employed and will likely resort to crime to obtain money for drugs."

[34]                        The respondent further submitted that the other two alleged errors relied on by the Minister's delegate were reasonably held opinions formed by officer Collette based on the material before her.

Relief sought by the applicant

[35]                        The respondent submitted that the Court does not have the jurisdiction to grant "a stay of the deportation order until such time as an application for permanent residence on H and C grounds can be determined". The order sought by the applicant violates the requirement that any stay of deportation is limited by the existence of a pending application. Once the application for judicial review has been dismissed, a stay cannot continue.

[36]                        The respondent requested that the application for judicial review be dismissed, and that the Court order the style of cause be amended to name The Solicitor General of Canada

as the respondent and to strike out The Minister of Citizenship and Immigration.

Relevant Statutory Provisions

[37]                        Sections 36, 44 and 45 of IRPA state in part as follows: