Date: 20100408
Docket: IMM-5136-08
Citation: 2010 FC 376
Ottawa, Ontario, April
8, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
JORGE
MARQUES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
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 (the Act) of a decision by an
immigration officer (the officer), on or about October 2, 2008, refusing the
application to extend the temporary resident permit issued to the applicant and
for authorization to work in Canada.
[2]
The
applicant seeks an order setting aside the officer’s decision and referring the
application back for redetermination by a different immigration officer.
[3]
The
applicable sections of the Act are set out in the Annex to this decision.
[4]
The
applicant, despite being criminally inadmissible to Canada pursuant to
section 36 of the Act, was granted a temporary resident permit (TRP), pursuant
to section 24 of the Act, for a short visit. An application to extend his TRP
was denied.
Background
[5]
The
applicant is a citizen of Portugal with a lengthy criminal
record. He was born in the former Portugese colony, Angola, but has
lived most of his life in the United States. He was deported from
the United States to Portugal in 2007 following a
drug conviction and the subsequent breach of his probation order.
[6]
The
applicant has a wife, Crystal, and a four year old son, Isaiah, born while the
applicant was incarcerated in the U.S. Both Crystal and Isaiah
are dual Canadian and U.S. citizens.
[7]
In
February 2008, the applicant came to Canada to visit his wife and
son. At this time, the applicant was deemed inadmissible to Canada due to his U.S. criminal
record, but was issued a TRP. Before the TRP expired, the applicant applied for
an extension of the TRP and for a work permit in order to remain in Canada.
The Officer’s Decision
[8]
In
a decision letter dated October 2, 2008, the officer determined after review that
there were insufficient grounds to merit the issuance of a new permit.
[9]
The
applicant had been told when he entered Canada that he
would be allowed a short term visit only and that no extension would be recommended.
[10]
The
officer then considered the best interests of the applicant’s four year old
son, Isaiah. It was apparent that since the applicant’s arrival in Canada, he
had been providing primary care for Isaiah, allowing Crystal to maintain
a full time job. While the applicant had bonded with his child, the officer
noted that Isaiah had spent most of his life without his father’s presence.
[11]
The
officer also noted the applicant’s efforts to rehabilitate himself, including
educational courses the applicant had completed. The officer, however, did not
find that these courses proved that the applicant had reformed himself. The
officer did believe that he was trying.
[12]
The
officer considered the seriousness of the offences the applicant had been
convicted of, namely, intent to distribute cocaine, conspiracy to possess with
intent to distribute cocaine and driving under the influence. The applicant’s
convictions did not arise out of a single occurrence, but involved multiple
run-ins with the law dating back to 1994.
[13]
The
officer articulated her final determination as follows:
In conclusion, I find that Mr. Marques
has an extensive criminal history but is trying to move forward. He stated that
his family is his life. He loves his wife to death and his son is his world. He
prays that he can be given a second chance. He has noticed a difference in
Isaiah since he has been around. His nightmares have subsided, he has gained some
weight and his temper tantrums are under control. While weight has been given
to this factor and also family reunification, the seriousness of the criminal
convictions outweighs the best interest of the child or family reunification in
this particular case.
During the course of the interview, I did
find Mr. Marques sincere and he accepted responsibility for his actions and has
the full support of his family. Because of these factors I found this a very
difficult decision to make. As I stated above I have considered the best
interest of a child and family reunification. I do not find that because he
accepts the responsibility of his past criminal convictions that this outweighs
the seriousness of these offences and the safety and security of Canadian
Citizen and warrants a granting of a temporary resident permit extension and
authorization to work in Canada.
Applicant’s Written Submissions
[14]
The
applicant submits that the officer failed to address the nature of the
applicant’s criminality which was critical because she found that his
criminality outweighed the best interests of the child. The record shows that
the applicant only dealt cocaine to protect his family from violent drug
dealers, whom Crystal’s dad owed
money. The applicant cooperated extensively with U.S. officials
after his arrest and testified before a grand jury, helping to bring several
drug dealers to justice. The officer did not have regard to this evidence.
[15]
The
applicant submits that the officer also erred in the assessment of the best
interests of the child. The Supreme Court of Canada in Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R.
(4th) 193, [1999] S.C.J. No. 39 (QL) at paragragh 75, found that decision makers
must be “alert, alive and sensitive” to the best interests of children affected
by the decision. In Kolosovs v. Canada (Minister of Citizenship and
Immigration), 2008 FC 165, [2008] F.C.J. No. 211 (QL), Mr. Justice Campbell
elaborated extensively on these comments and broke down more precise
requirements of decision makers under the headings of “Alert”, “Alive” and
“Sensitive” (at paragraphs 8 to 12). The officer failed to live up to this
standard. For example, the officer: (i) did not articulate Isaiah’s suffering,
including the serious economic insecurity that would ensue; (ii) said the
applicant had not been there for most of Isaiah’s life but did not mention that
this was a negative for Isaiah; and (iii) did not consider the needs of the
couple’s unborn child.
Respondent’s Written Submissions
[16]
The respondent submits that the officer’s decision was reasonable.
The decision making process was intelligible, with the officer considering the
factors both for and against an extension. While a different conclusion could
have been reached, there is no legal argument to suggest her decision was
unreasonable. Further, the applicant sought to use humanitarian and
compassionate grounds (H&C) factors to support his TRP application, even
though the Act provides other mechanisms for considering whether H&C
factors warrant the granting of relief.
[17]
The respondent submits two reasons the applicant’s first line of
argument cannot succeed. First, even though the decision shows that the officer
did state the mitigating factors surrounding the applicant’s convictions,
officers have no obligation nor the jurisdiction to consider any mitigating circumstances
underlying a conviction. Administrative decision makers must accept a
conviction at face value. Second, the officer was entitled to give the
convictions considerable weight as a negative factor. They were serious
offences. Parliament, in enacting paragraphs 36(1)(b) and 36(2)(b) of the Act
directed that these convictions be considered serious. The applicant could have
attempted to obtain a pardon, but did not.
[18]
The respondent also submits that best interests of the child are
not a required consideration in TRP applications. Even if the best interests of
the child are to be considered, they cannot be determinative, as the applicant
suggests. Even in H&C decisions, an officer’s duty to consider the best
interests of the child depends on the submissions made in support. Here, the
applicant made passing reference to the child’s best interests, but did not
explain how the child would be adversely affected or would undergo hardship. No
documentary evidence was provided. Thus, the officer cannot be faulted in this
regard.
Issues
[19]
The
issues are:
1. What is the
appropriate standard of review?
2. Did the officer
properly assess the criminal inadmissibility issues?
3. Was the officer
required to consider the best interests of the child factors on the TRP application?
4. Was the officer’s
best interests of the child assessment appropriate?
5. Was the officer’s
decision not to extend the applicant’s TRP reasonable?
Analysis and Decision
[20]
Issue
1
What is the appropriate
standard of review?
The appropriate standard
against which to review the officer’s decision is the standard of
reasonableness.
[21]
Issue
2
Did the officer properly
assess the criminal inadmissibility issues?
In making her decision, the
officer put considerable weight on the applicant’s criminal convictions and the
seriousness of those convictions. In my opinion, she was entitled to do so.
[22]
While
the applicant argues that the officer failed to mention or analyze mitigating
circumstances underlying those convictions, the officer had no jurisdiction to
consider such factors. An administrative decision maker must accept a
conviction at face value and has limited authority to re-examine it or to
question a Court’s determination of the seriousness of a conviction as reflected
by the sentence imposed (see Toronto (City) v. Canadian
Union or Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3
S.C.R. 77, [2003] S.C.J. No. 64 (QL)).
[23]
The
applicant does not take issue with the officer’s description of his criminal
convictions or the determined equivalent offences under Canadian criminal law.
The applicant’s counsel also admits that one of the applicant’s convictions
constitutes a serious offence under paragraph 36(1)(b) of the Act.
[24]
In
any event, the record demonstrates that the officer did in fact mention some of
the mitigating circumstances underlying the applicant’s most serious cocaine
distribution conviction. She was not required, however, to give those
mitigating circumstances any significant weight, as the applicant suggests. It
was still open to the officer to treat his convictions as very serious.
[25]
I
am of the view that there was no error in the officer’s handling of the
applicant’s convictions. As a result, I would not allow the judicial review on
this ground.
[26]
Issue
3
Was the officer required to
consider the best interests of the child factors on the TRP application?
It would appear to me that this
question need not be answered in this case as the officer did consider the best
interests of the child. The question to be determined is whether the officer’s
best interests of the child assessment was appropriate. That is the subject
matter of the next issue. Accordingly, I need not further consider this issue.
[27]
Issue
4
Was the officer’s best
interests of the child assessment appropriate?
When an officer chooses to or
is required to consider the bests interests of the child under any provision of
the Act, the extent to which he or she is able to analyze those factors depends
on the submissions made about those interests and the documentation supporting
those submissions. In the context of an H&C application, it was noted in Owusu
v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635:
[5]… an applicant has the burden of
adducing proof of any claim on which the H & C application relies. Hence,
if an applicant provides no evidence to support the claim, the officer may
conclude that it is baseless.
The record here demonstrates that the
applicant led little evidence regarding his child. No objective evidence concerning
the child or the effect on the child if his father had to leave Canada was adduced.
[28]
The
applicant claims, nonetheless, that the officer was required to conduct a
comprehensive analysis as suggested by this Court in Kolosovs v. Canada (Minister of
Citizenship and Immigration), 2008 FC 165, [2008] F.C.J. No. 211 (QL).
I cannot agree with this submission for two reasons.
[29]
First,
if an officer does consider it necessary to take into account the best
interests of any children affected by a TRP application, the officer is not
required to follow the methodology required for adjudicating best interests of
the child factors under an H&C application.
[30]
Second,
the status of Kolosovs above, as an authority is rather dubious. Even
officers conducting full H&C application reviews under subsection 25(1) are
only required to assess best interests of the child factors under the approach
suggested in Kolosovs above, to the degree that it is consistent with
the Federal Court of Appeal’s binding direction in Hawthorne v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555, 222
D.L.R. (4th) 265. The approach in Hawthorne above, was recently
affirmed (see Kisana v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, [2009]
F.C.J. No. 713 (QL)). Consequently, I would not allow the judicial
review on this ground.
[31]
Issue
5
Was the officer’s
decision not to extend the applicant’s TRP reasonable?
The Supreme Court has recently
explained the level of deference proscribed by the reasonableness standard. A
decision will be considered reasonable if it falls within the range of
potential outcomes open to the decision maker, considering the facts and the
law before. A decision is reasonable if a suitable justification exists to
support it and the decision is made through an intelligible process (see Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9 (QL)).
[32]
It
is clear from a reading of the decision that the officer deliberated and
considered the factors both for and against granting the TRP extension. As the
officer stated, it was a difficult decision to make and by reading her reasons,
one can understand why. Her reasoning was intelligible and transparent. The
benefits to the child and the goal of family reunification were serious
considerations, but ultimately those benefits were outweighed by the
seriousness of the applicant’s crimes and other negative factors. It is not for
this Court to engage in an exercise of re-weighing those factors. While a
different decision could have been made, it has not been established that the
decision made was not available to her under the law or lacks a proper factual
foundation so as to be unreasonable. I would not allow the judicial review on
this ground.
[33]
The
respondent proposed the following serious question of general importance for my
consideration for certification:
Is an immigration officer assessing a TRP
extension of time request required to consider the best interests of the child?
If so, how is the best interests assessment to be conducted?
[34]
I
am not prepared to certify this question as I agree with the applicant it would
not be dispositive of the case. The officer in this case did look at the best
interests of the child.
[35]
The
application for judicial review is therefore dismissed.
JUDGMENT
[36]
IT
IS ORDERED that:
1. The application for
judicial review is dismissed.
2. No serious question
of general importance will be certified.
“John
A. O’Keefe”
ANNEX
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
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24.(1) A foreign national who, in the
opinion of an officer, is inadmissible or does not meet the requirements of
this Act becomes a temporary resident if an officer is of the opinion that it
is justified in the circumstances and issues a temporary resident permit,
which may be cancelled at any time.
(2) A foreign
national referred to in subsection (1) to whom an officer issues a temporary
resident permit outside Canada does not become a temporary resident until
they have been examined upon arrival in Canada.
(3) In
applying subsection (1), the officer shall act in accordance with any
instructions that the Minister may make.
25.(1) The Minister shall, upon request of
a foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or on
request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligation of
this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
36.(1) A
permanent resident or a foreign national is inadmissible on grounds of
serious criminality for
(a) having
been convicted in Canada of an offence under an Act of
Parliament punishable by a maximum term of imprisonment of at least 10 years,
or of an offence under an Act of Parliament for which a term of imprisonment
of more than six months has been imposed;
(b) having
been convicted of an offence outside Canada that, if committed in Canada,
would constitute an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years; or
(c) committing
an act outside Canada that is an offence in the place where
it was committed and that, if committed in Canada,
would constitute an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years.
(2) A foreign
national is inadmissible on grounds of criminality for
(a) having
been convicted in Canada of an offence under an Act of
Parliament punishable by way of indictment, or of two offences under any Act
of Parliament not arising out of a single occurrence;
(b) having
been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of
Parliament, or of two offences not arising out of a single occurrence that,
if committed in Canada, would constitute offences under an
Act of Parliament;
(c) committing
an act outside Canada that is an offence in the place where it was committed
and that, if committed in Canada, would constitute an indictable
offence under an Act of Parliament; or
(d)
committing, on entering Canada, an offence under an Act of Parliament
prescribed by regulations.
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24.(1)
Devient résident temporaire l’étranger, dont l’agent estime qu’il est
interdit de territoire ou ne se conforme pas à la présente loi, à qui il
délivre, s’il estime que les circonstances le justifient, un permis de séjour
temporaire — titre révocable en tout temps.
(2)
L’étranger visé au paragraphe (1) à qui l’agent délivre hors du Canada un
permis de séjour temporaire ne devient résident temporaire qu’après s’être
soumis au contrôle à son arrivée au Canada.
(3)
L’agent est tenu de se conformer aux instructions que le ministre peut donner
pour l’application du paragraphe (1).
25.(1)
Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
36.(1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants :
a)
être déclaré coupable au Canada d’une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction
à une loi fédérale pour laquelle un emprisonnement de plus de six mois est
infligé;
b)
être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise
au Canada, constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans;
c)
commettre, à l’extérieur du Canada, une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans.
(2)
Emportent, sauf pour le résident permanent, interdiction de territoire pour
criminalité les faits suivants :
a) être
déclaré coupable au Canada d’une infraction à une loi fédérale
punissable par mise en accusation ou de deux infractions à toute loi fédérale
qui ne découlent pas des mêmes faits;
b)
être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise
au Canada, constituerait une infraction à une loi fédérale punissable par
mise en accusation ou de deux infractions qui ne découlent pas des mêmes
faits et qui, commises au Canada, constitueraient des infractions à des lois
fédérales;
c) commettre,
à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale
punissable par mise en accusation;
d)
commettre, à son entrée au Canada, une infraction qui constitue une
infraction à une loi fédérale précisée par règlement.
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