Date: 20080908
Docket: IMM-122-08
2008 FC 1003
Ottawa, Ontario,
September 8, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
JULIUS
R. NASSO
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] This
is an application for judicial review of the decision of a visa officer in the
Canadian consulate in New
York dated October
26, 2007, refusing the Applicant's application for a temporary resident permit (TRP)
to enter Canada. For the reasons that follow,
the application is dismissed.
BACKGROUND
[2] Mr. Nasso is a successful businessman
in the United
States of America
with Canadian business interests. He owns and operates a large marine medical
supply company headquartered in New York City which supplies 11 Canadian marine
companies located in Vancouver, Montreal and Dartmouth. He is also involved in the
motion picture industry in the USA and is a partner in a film
production company in Toronto.
[3] It was his film production
activities in the USA that ultimately led to Mr. Nasso being charged and convicted
of the criminal offence of “knowingly and intentionally conspiring to commit
extortion” contrary to US Code, Title 18, Section 1951(b)(2). The Canadian
equivalent of this offence is extortion, as defined in section 346(1) of the Criminal
Code, R.S.C. 1985 c. C-46. The offence arose in relation to a financial
dispute between the Applicant and his then business partner. Mr. Nasso claimed
that his partner owed him a substantial sum of money. Rather than leaving the
dispute to be resolved through the judicial process, Mr. Nasso resorted to a
self-help measure which ultimately led to his conviction. Through a plea
bargain, Mr. Nasso received a sentence of one year plus one day to be served at
a minimum security prison, payment of a fine in the amount of $75,000,
probation and mental health counselling.
[4] The Applicant has served 9-1/2
months of his sentence and was released from prison on June 28, 2005. His
probationary period ended on June 26, 2006 and his parole officer has confirmed
that Mr. Nasso has met all the terms of his sentence.
[5] The Applicant’s current
predicament is that he would like to come to Canada in connection with his business
interests here, but cannot do so due to his criminal background. In his
application for a TRP, counsel for Mr. Nasso describes the purpose of his visit
to Canada in the following manner:
Mr. Nasso wishes to enter Canada for short periods of time to
meet with executives from the Canadian shipping companies that Mr. Nasso’s marine
medical supplies company services and to oversee his interest in a Canadian
film company that he formed with Canadian partners. The company,
Lee-Nasso-Wynn Productions, is actively involved in making films in Canada and has recently produced an
award-winning film, starring Daryl Hannah and Roy Scheider.
[6] Mr. Nasso remains inadmissible
to Canada on grounds of serious
criminality pursuant to section 36(1)(b) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, which provides as follows:
|
36. (1) A permanent resident or a foreign national
is inadmissible on grounds of serious criminality
…..
(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;
|
36. (1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants :
…..
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;
|
[7] There is an discretionary
exemption to section 36(1)(b), set out in section 24(1) of the Act, which reads
as follows:
|
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.
|
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.
|
[8] The objectives and exceptional
nature of this exemption were recently described in detail by my colleague
Justice Shore in Farhat v. Canada (The Minister of Citizenship and
Immigration), 2006 FC 1275:
[22] The objective of section 24 of IRPA is to soften the
sometimes harsh consequences of the strict application of IRPA which surfaces
in cases where there may be "compelling reasons" to allow a foreign
national to enter or remain in Canada despite inadmissibility or non-compliance with IRPA.
Basically, the TRPs allow officers to respond to exceptional circumstances
while meeting Canada's social, humanitarian, and economic commitments.
(Immigration Manual, c. OP 20, section 2; Exhibit "B" of Affidavit of
Alexander Lukie; Canada (Minister of Manpower and Immigration) v. Hardayal,
[1978] 1 S.C.R. 470
(QL).)
[23] Before a TRP is issued, consideration must be given to the
fact that TRPs grant their bearer more privileges than do visitor, student or
work permits. Like the foreign nationals from those two categories, a TRP
bearer becomes a temporary resident after being examined upon his entry to
Canada, but may also be eligible for health or social services and can apply
for a work or student permit from Canada. Furthermore, he may obtain, without
discretion, permanent resident status if he resides in Canada throughout the
validity period and does not become inadmissible on other grounds than those
for which the TRP was granted. (Immigration Manual, c. OP 20, section 5.7;
Exhibit "B" of Affidavit of Alexander Lukie.)
[24] TRPs should thus be recommended and issued cautiously.
Parliament was aware of the exceptional nature of TRPs and has retained a
supervisory function in their regard; thus the Minister includes in the annual
report to Parliament the number of TRPs granted under s. 24 of IRPA,
"categorized according to grounds of inadmissibility, if any."
(Immigration Manual, c. OP 20, s. 5.2 (paragraph 2) and 5.22; Exhibit
"B" of Affidavit of Alexander Lukie; Subsection 94(2) of IRPA.)
[9] In his refusal letter of
October 26, 2007, the visa officer informed Mr. Nasso that “[y]ou have failed
to demonstrate that your request is compelling enough [that] such an
exceptional document should be issued.” He further writes:
I am not satisfied the need for you to be
in Canada is sufficient to overcome the
inadmissibility. Therefore, the need for you to be in Canada is not compelling enough to overcome any
risk of recidivism. For these reasons, I have refused your application.
[10] These reasons are consistent
with the officer’s Computer Assisted Immigration Processing System (CAIPS)
notes which read as follows:
ASSESSMENT ON THE DOCS PRESENTED IN APPLN
(W/C ALSO INCLUDE THE COURT PROCEEDINGS, COPY OF JUDGE’S DECISION ALLOWING SUBJ
TO TRAVEL TO TORONTO ON AN INTERMITTENT BASIS PROVIDED CDN REQS ARE COMPLIED
WITH, DOC EVIDENCE OF TERM OF SUPERVISED RESEASE AS OF 30/06/06 LORS, STATUTES
LEGAL REP HIGHLIGHTS SUBJ’S PROF
BACKGROUND IN FILM INDUSTRY, HIS MEDICAL SUPPLY CO (…) STATES THAT SBJ’S SOLE
CONVICTION WAS AN INDICATION OF “ABERRANT BEHAVIOUR” AND THAT SUBJ POSES NO
RISK TO CANADIAN SOCIETY. (…) LEGAL REP OUTLINES ASSESSMENT OF NEED VS RISK.
NONETHELESS, SUBJ WAS CONVICTED OF A VERY
SERIOUS CRIME (…) SUBJ IS NOT ELIGIBLE FOR NHQ REHAB UNTIL 30/6/11.
SINCE HIS INADMISSIBILITY (…) SUBJ’S
BUSINESSES CONTINUE AND APPEAR TO THRIVE (…) WHERE TECHNOLOGY IS ACCESSIBLE
(TELECONFERENCING ET AL.), I DO NOT FIND HIS REASONS TO ENTER CDA COMPELLING
AND IT IS MY OPINION THAT HIS INABILITY TO ENTER CDA, ALBEIT INCONVENIENT, WILL
NOT RESULT IN UNDUE HARDSHIP.
ISSUES
[11] The Applicant submitted four
issues to this Court; however, in my opinion, they may be collapsed into the
following:
1. Whether the visa officer erred in his interpretation
of section 24(1) of the Act; and
2. Whether the visa officer’s decision was
unreasonable in light of the evidence presented.
STANDARD OF REVIEW
[12] Highly discretionary decisions
such as the decision to issue a TRP were previously held to attract deference
to the point of patent unreasonableness: Mount Sinai Hospital Centre v. Quebec (Minister of Health and
Social Services), 2001
SCC 41, as cited by this Court in Farhat. Since Dunsmuir v. New
Brunswick, 2008 SCC 9, the appropriate standard is “reasonableness” as that
concept is elaborated by the Supreme Court, it being understood on the basis of
existing case law that a negative TRP decision would have to be highly
irregular to justify the intervention of the Court: Ali v. Canada, 2008
FC 784, at para. 9. The Applicant submits, on the authority of Dunsmuir,
that where the issue is one of statutory interpretation, the standard of review
is correctness.
Did the Officer err in his interpretation
of the statute?
[13] Mr. Nasso submits that the
officer erred in his interpretation of section 24(1) of the Act by reading in a
requirement that there be a “compelling need” shown by an applicant before the
exemption is warranted. The Applicant points to the following passages from
the refusal letter and CAIPS notes as evidence that the officer employed a
standard of compelling need.
…the need for you to be in Canada is not compelling enough to
over come any risk of recidivism.
THERE HAS BEEN NOTHING FROM
CAN, IN PARTICULAR, HIS NEED/NEED TO BE IN CAN.
[14] It is submitted that while the
officer’s interpretation is consistent within the policy guideline, IP1 –
Temporary Resident Permits, it imposes on section 24(1) of the Act a condition
greater than the requirement specified in that section that the permit be “justified
in the circumstances”.
[15] I am not convinced that there
is any misinterpretation of section 24(1), as alleged. As is noted by Justice Shore in Farhat, section 24
of the Act allows officers to soften the harsh consequences of a strict application
of the Act in “exceptional circumstances”. It seems to me that an applicant
who cannot satisfy an officer that he has a requirement or, to use the words of
the decision under review, a compelling need to enter Canada, cannot establish that a permit is
justified in the circumstances. In other words, to be granted a TRP in these exceptional
circumstances requires more than showing that one has a wish or desire to enter
Canada – it requires much more –
otherwise, it is not an exceptional circumstance. When the Applicant claims
that he needs to enter Canada for business purposes, then he ought to be able
to establish that those purposes cannot be met or satisfied from his own
country but require his presence in Canada.
That, to my mind, is a compelling need. Accordingly, I find that the officer
did not misinterpret the requirements in section 24(1) of the Act.
Was the officer’s decision unreasonable?
[16] In my view the officer gave
the Applicant a full and fair opportunity to present his case for admission to Canada. The CAIPS notes and letter
indicate that the officer fairly considered the reasons advanced by Mr. Nasso
but ultimately found that they did not justify the admission of Mr. Nasso to Canada.
[17] It was submitted that the
officer’s decision was unreasonable because he speaks of the “risk of recidivism”
when the evidence shows that this one crime was aberrant behaviour on the part
of the Applicant. I find this unconvincing as the officer clearly speaks of
the “risk” of re-offending. It is also submitted that the officer’s decision
was unreasonable because he says that “there is something awkward about a
person recently convicted from requesting money from investors who may or may
not know of his past” when there is no evidence that Mr. Nasso intends to seek money
from investors. The Applicant in advancing this submission ignores the full
explanation of the officer that contains the passage that is disputed. What
the officer writes is as follows:
AS FOR HIS OTHER “INVESTMENTS” THERE IS NOTHING
CLEAR ABOUT THIS AND WHILE I CANNOT PEER INTO HIS DEALINGS THERE IS SOMETHING A
LITTLE ACKWARD ABOUT A PERSONAL (sic) RECENTLY CONVICTED OF EXTORTION
FROM REQUESTING MONEY FROM INVESTORS WHO MAY,. OR MAY NOT, KNOW OF HIS PAST, OR
KNOW THAT HE IS, IN FACT, INADMISSIBLE TO CAN.
[18] In short, the officer
acknowledged that his comments are speculative in nature. In the context of
the entire decision and the reasons for it, I am not satisfied that this
speculation played any role in the decision not to grant the permit. It is
also submitted that the officer erred in that he considered that Mr. Nasso had
been convicted of extortion when he had been convicted of conspiracy to commit
extortion. In my view this difference is immaterial and, in any event, the
Canadian equivalent of the offence for which he was convicted was acknowledged
to be that found in section 346(1) of the Criminal Code, which is
extortion.
[19] For all of these reasons, the
application for review is dismissed. Neither party proposed any question for
certification nor is there any.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This application for
judicial review is dismissed; and
2. No
question is certified.
“Russel W. Zinn”
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