Date: 20090612
Docket: IMM-4025-08
Citation: 2009 FC 624
Ottawa, Ontario, June 12,
2009
PRESENT: The Honourable Frederick E. Gibson
BETWEEN:
LEON
GRIFFITHS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1]
These
reasons follow the hearing at Toronto, on the 14th of May, 2009, of
an application for judicial review of a decision of an Immigration Officer (the
“Officer”), dated the 27th of August, 2008, whereby the Officer denied
the Applicant an opportunity, on humanitarian and compassionate grounds, to
return from Jamaica to Canada to apply for permanent residence from within
Canada. The Applicant sought the opportunity pursuant to subsection 25(1) of
the Immigration and Refugee Protection Act . At the
close of the hearing, I advised counsel that this application for judicial
review would be dismissed. Counsel for the Applicant requested leave to
provide written submissions on certification of a question to allow for an
appeal of my conclusion and decision. I acceded to that request. In preparing
these reasons, I have had regard, not only to the brief explanation provided at
the close of hearing for my conclusion, but also to the extensive written
submissions on certification provided by counsel for the Applicant, to
responding written submissions provided by counsel for the Respondent and to a
reply to those written submissions.
Background
[2]
The
Applicant is a citizen of Jamaica where he was born on
the 19th of November, 1970. The Applicant entered Canada in November,
1976, at the age of five or six. He was removed back to Jamaica in
September, 2006, almost 30 years after his arrival in Canada. That being
said, a deportation order was issued against the Applicant on the 15th
of August, 1994 following his conviction in Canada for criminal
activity. A negative Pre-Removal Risk Assessment was issued against the
Applicant on the 17th of February, 2005.
[3]
The
Applicant’s mother, two brothers and sister live in Canada and are
Canadian citizens. The Applicant has three Canadian born children who, at the
date of the decision under review, were 13, 12 and 7 years of age
respectively. The Applicant has no known relatives outside of Canada. At the
date of his removal from Canada, the Applicant was not married.
[4]
On
the 30th of November, 1992, the Applicant was convicted in Canada of robbery,
disguise with intent to commit an offence and possession of a dangerous
weapon. He was sentenced to a term of imprisonment of two years, less one day.
As earlier noted, in the result, a deportation order was issued against the
Applicant. Implementation of that deportation order was stayed on conditions,
including good behaviour, but the stay was subsequently revoked. The Applicant
was convicted on the 18th of November, 1994 on a charge of
obstruction of justice. Submissions before the Officer on behalf of the
Applicant indicate that he was charged with conspiracy to traffic and
obstruction of justice in 1996. In January of 2001, he was acquitted of the
conspiracy charge and pled guilty to the obstruction charge. The Applicant was
also convicted in 1996 on a charge of assault.
[5]
The
Officer’s notes to file in support of the decision under review indicate that:
“Information about any pardons has not been provided”. While the foregoing
might be considered to be technically accurate since no information regarding
the grant or denial of any pardon or pardons to the Applicant was before the
Officer, the Officer did have before him written information indicating that a
pardon or pardons had been applied for on behalf of the Applicant.
[6]
The
Applicant’s criminal activities would appear from the information that was
before the Officer to have ended in 1996. From that year, the Applicant worked
as an auto mechanic, as location support for a security company and as a
shipper and receiver for a moving company. Between 1993 and 2004, the
Applicant studied at Seneca College in the fields of
accounting/finance, fashion merchandising and fashion design.
[7]
A
letter from a psychiatrist in Jamaica that was before the
Officer indicates that the Applicant has had great difficulty in adjusting to
life in Jamaica since his
return to that country. The letter indicates that the Applicant suffers from
chronic depression in Jamaica.
The Decision under
Review and the Supporting Reasons
[8]
The
Officer notes at the commencement of his Decision And Reasons that:
Mr. Griffiths bears the onus of
satisfying the decision-maker that his personal circumstances are such that a
hardship of not being granted the requested exemption would be i) unusual and
undeserved or ii) disproportionate.
[9]
The
Officer notes that the stay of removal that was granted to the Applicant
following his November, 1994 conviction was lifted in December, 1998 because of
subsequent criminal charges and a breach of the terms and conditions imposed
with the stay.
[10]
The
Officer further notes that the Applicant lived in Canada for 30 years, that is
to say until the time of his removal back to Jamaica in 2006, and that he was
only six years old when he arrived in Canada. The Officer notes the
Applicant’s work and study record from 1996 until the time of his removal.
[11]
The
Officer reviews the Applicant’s criminal record and reiterates that:
“Information about any pardons has not been provided.” The Officer further
notes that the Applicant’s submissions indicate that he has had no criminal
charges laid against him since 1996 and concludes with regard to the
Applicant’s establishment in Canada in the following terms:
I accept the time the applicant has spent
in Canada and that he arrived at an
early age. I also acknowledge his Canadian employment and his upgrading of
skills. However, considering his establishment and his inadmissibility for
serious criminality and his other separate criminal convictions I am not
satisfied that an A25(1) exemption is warranted to facilitate processing the applicant
for permanent residence within Canada on the basis of a hardship that is
unusual and undeserved or disproportionate.
[12]
The
Officer then goes on to consider humanitarian and compassionate factors in the
Applicant’s background under the headings “Best Interests of the Children”,
“Family Related Factors” and “Challenge of Returning to Jamaica”.
[13]
With
regard to the best interests of the Applicant’s Canadian born children, the
Officer notes their ages, a letter from the mother of the two elder children
indicating that: … “the children need their father in Canada for
guidance.” and a letter dated in 2002 from the mother of the youngest child “…..stating
the applicant’s deportation would cause great stress to her and her
daughter;”. The Officer notes that no “updated reference letter” from the
mother of the youngest child was before him or her.
[14]
With
regard to the bests interests of the Applicant’s children, the Officer
concludes:
… I accept that the applicant’s absence
from Canada is a source of sadness for his children though I am not satisfied
that an A25(1) exemption is warranted to facilitate processing the applicant
for permanent residence within Canada on the basis of a hardship
that is unusual and undeserved or disproportionate.
[15]
The
Officer, under the heading “Family Related Factors” merely states:
The applicant emigrated to Canada in 1976 with his mother, his
two brothers and his sister. The applicant listed living with his mother until
he was deported and he still uses her address as a Canadian mailing address.
The applicant’s father died when the applicant was 13, which he states affected
him profoundly. Reference letters were provided from his Canadian family
members and I accept their relationship.
[16]
Finally,
under the heading “Challenge of Returning to Jamaica”, the Officer notes that
the Applicant last lived in Jamaica before his removal back to that country
when he was six years old, that he has no close family members in Jamaica, that
he alleges that he has no future in Jamaica and acknowledges the letter that
was before him or her from a psychiatrist in Jamaica who comments on the
Applicant’s difficulty in adjusting to the lifestyle and culture in Jamaica and
to what the psychiatrist refers to as the Applicant’s “chronic depression”. In
this regard, the Officer concludes:
… However, the Applicant found work in Jamaica providing carpentry services
immediately after his return there in September 2006.
I acknowledge the applicant’s concern
about violence and crime in Jamaica and I have reviewed the
newspaper articles that were submitted for consideration. I accept the
applicant’s concerns about living in Jamaica;
however the applicant has not satisfied me that crime and violence in Jamaica would necessarily affect him
personally. The applicant’s 2006 submissions stated that the Jamaican
government was imposing restrictions on Jamaican nationals deported back to
Jamaica and that deportees faced barriers to opportunities there. However, the
applicant’s 2008 submissions did not state that he faced restrictions and
barriers imposed by the government after his return. The applicant has not
satisfied me that the challenge of returning to Jamaica would be hardship that is [un]usual and
undeserved or disproportionate. There are other immigration programs and
relief mechanisms that the applicant can explore if he wishes to apply to
return to Canada.
[emphasis added]
[17]
In
the two final paragraphs of the Officer’s notes, he or she writes:
I have considered all information
regarding this application as a whole. Having reviewed and considered the
grounds Mr. Griffiths has forwarded as grounds for an exemption, I do not find
they constitute as unusual and undeserved or disproportionate hardships.
Therefore, I am not satisfied sufficient humanitarian and compassionate grounds
exist to approve this exemption request.
The application is refused.
[18]
While
the two foregoing paragraphs are not separated from the portion of the
Officer’s notes under the heading “Challenge of Return to Jamaica”, I am
satisfied that they constitute a general conclusion and represent a balancing
of the Officer’s conclusion regarding the impact of the Applicant’s
inadmissibility for serious criminality in Canada and the positive humanitarian
and compassionate considerations put forward by and on behalf of the Applicant.
The Issues
[19]
In
the Memorandum of Fact and Law filed on behalf of the Applicant, the issues on
this application for judicial review are identified as first, standard of
review, secondly, whether the Officer erred in identifying criminal
inadmissibility as a bar to the Applicant’s success on this application,
thirdly, whether the Officer erred in failing to be alert, alive and sensitive
to the evidence before him regarding the best interests of the Applicant’s children
in Canada, and fourthly, whether the Officer erred in failing to give full
weight to the evidence before him or her regarding the “undue” hardship that
the Applicant was experiencing in Jamaica. While not specifically identified
in the Applicant’s Memorandum, before the Court, counsel urged that the Officer
failed to have full regard to the evidence before him or her from the Applicant’s
mother, from the mother of the Applicant’s two older children and to an
extensive Psycho-Social Process Assessment and Culturally/Racially Sensitive
Opinion provided by Dr. Ralph Agard, dated the 19th of December,
2003.
Analysis
a) Standard
of Review
[20]
Except
with respect to questions of pure law, it is now well settled that the standard
of review of a decision such as this, reflecting as it does a conclusion that humanitarian
and compassionate relief is not warranted in favour of the Applicant, is “reasonableness”
with substantial deference being owed to the decision-maker in respect of his
or her weighing of the evidence that is before the Officer. It is further well
settled that, for a decision to be reasonable, there must be justification,
transparency and intelligibility within the decision-making process and the
decision must fall within a range of possible, acceptable outcomes which are defensible
in respect of the facts and the law. The Supreme Court of Canada has recently
clarified in Khosa
that it is possible that there may be more than one reasonable outcome and what
is important is that the process and the outcome demonstrate justification,
transparency and intelligibility and that, if the foregoing test is satisfied,
a reviewing Court should not substitute its own view of a preferable outcome.
b) Application
of the Appropriate Standard of Review to the Facts of this Application
[21]
It
is trite law that applications for permanent residence in Canada are to be made
from outside Canada and that permission
to apply for permanent residence from within Canada is a highly
discretionary exception to the general rule. Such permission may be granted
only on an application such as that here before the Court, made pursuant to
subsection 25(1) of the Act. Generally speaking, applications pursuant
to subsection 25(1) are made by persons who are within Canada and who have
been here for a considerable period of time. That is not here the case.
Although the Applicant resided in Canada for a very considerable period of
time, he was removed from Canada by reason of his own misconduct and now seeks
to return, not on the basis of an approved visa application, bur rather, for
the purpose of seeking such a visa from within Canada, based on his long period
of residence in Canada, during the latter portion of which, it is urged, his
conduct was beyond reproach, his family support in Canada from his mother and
siblings, and the best interests of his three children in Canada. There is no
question regarding his family support in Canada and the
evidence regarding the best interests of his Canadian children based on the
evidence
that was before the Officer and is now
before the Court. That being said, at the time of the decision under review,
pardon for his criminal conduct in Canada remained at issue and the course of
consideration whether or not the Applicant should be pardoned for his past
criminal conduct goes directly to the question of whether the Applicant has in
fact remained free of criminal conduct since his last conviction in Canada.
[22]
The Officer summarized the Applicant’s conduct during the
long period that he resided in Canada, including his criminal conduct and what
would appear to be his positive conduct since his last conviction. The Officer
took into account the Applicant’s employment record since his last known
criminal activity, his study to upgrade his education, the positive support of
his family members, and evaluated the “best interests” of the Applicant’s three
Canadian born children. The Officer weighed the negative aspects of the
Applicant’s conduct in Canada and, I am satisfied, weighed those considerations
against the positive considerations flowing from the Applicant’s later conduct
in Canada, based on the evidence that
was before him or her, and against the best interests of the Applicant’s
children in Canada. He or she reached a
conclusion on the basis of that weighing or balancing that, based upon the
submissions of the Applicant’s counsel that were before me, both in writing and
presented orally at hearing, were not the conclusions that counsel would have
drawn. That is not the test. Indeed, whether they were the conclusions that
the Court itself might have drawn is not the test. Rather, the test is whether
or not the conclusions drawn by the Officer were reasonably open to him or her,
having regard to the guidance as to “reasonableness” provided by the Supreme
Court of Canada.
[23]
In Ramotar,
my colleague Justice Kelen cited our colleague Justice Shore in Lee v. Canada (Minister of Citizenship and Immigration) where Justice Shore wrote:
In essence, positive
H&C decisions are for circumstances sufficiently disproportionate or
unjust, such that the persons concerned should be allowed to apply for landing
from within Canada, instead of returning home and joining a long queue in
which many others had been waiting patiently. ...
The foregoing applies
with only one modification on the facts of this matter. Here, the Applicant is
not seeking to be allowed to apply for landing from within Canada instead of returning home. Rather, he is already “at home”,
as tenuous as his connection to Jamaica might be.
[24]
Against the appropriate standard of review, that of
reasonableness, I am satisfied that the Officer made no reviewable error in
arriving at the decision here under review.
Conclusion
[25]
For the foregoing reasons, this application for judicial
review will be dismissed.
Certification
of a Question
[26]
As indicated earlier in these reasons, at the close of the
hearing of this application for judicial review, I advised counsel that the
application would be dismissed and provided counsel with an opportunity to
provide the Court with written submissions on certification of a question.
[27]
Counsel for the Applicant urged the certification of the
following two questions, supported by very extensive written argument:
1. Does
subsection 25(1) of IRPA permit the Minister’s delegate to override criminality
and if so, what is the process by which such could be done?
2. In applying
the Dunsmuir test, is the fact that the legal error as in this case, the
misapplication of 25(1) of the IRPA, require that the Court not to interfere
even when the Court is of the view that the application of the subsection is
incorrect? Or alternatively, what is the Standard of Review in a case where
there is a misapplication of the subsection 25(1) of the IRPA?
[28]
In responding submissions, counsel for the Respondent urged
that neither of the proposed questions meets the criteria for certification.
Counsel for the Applicant, without leave of the Court, and apparently on the
assumption that he was entitled as of right to provide responding submissions,
did so.
[29]
In general, counsel appearing before the Court on an
application for judicial review in an immigration matter where certification of
a question is a condition precedent to a right of appeal are expected to appear
before the Court ready to speak to the issue of certification of a question. I
regard that as particularly appropriate where the Court, as here, advised counsel
with brief reasons, and at the close of hearing, of the Court’s conclusion as
to the appropriate outcome of the application for judicial review.
[30]
Where the Court is requested at close of hearing to provide
an opportunity for written submissions, I am satisfied that it is within the
Court’s sole discretion as to whether it will do so. Equally, I am satisfied
that it is within the Court’s sole discretion where it provides an opportunity
for written submissions to provide a timetable for those submissions. On the
facts of this matter, counsel for the Applicant and the Respondent were
provided more than a week to make written submissions. It was made clear to
counsel that that period of time was to accommodate a reasonable opportunity
for submissions to be made on behalf of both parties. Counsel for the
Applicant only served and provided to the Court his submissions on the
afternoon of the last day provided for submissions. Counsel for the Respondent
requested of the Court an extension of time to reply and that was provided. No
request was made on behalf of the Applicant for any time to respond.
[31]
Notwithstanding the foregoing, as earlier noted, I have
considered all of the originating submissions on certification on behalf of the
Applicant, the Respondent’s responding submissions and the Applicant’s reply
submissions.
[32]
I am in agreement with the submissions made on behalf of
the Respondent. Neither of the proposed questions meets the criteria for
certification of a question. In this regard, I refer counsel to the recent decision
of the Federal Court of Appeal in Carrasco Varela v. Canada (Minister of Citizenship and
Immigration) where there is an extensive discussion on the issue of certification of
questions in immigration matters.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed. No question is certified.
“Frederick
E. Gibson”
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