Docket:
IMM-3464-13
Citation: 2014 FC 321
Ottawa, Ontario, April 2,
2014
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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MARK DOUGLAS KATZMANN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
The applicant, Mr Mark Douglas Katzman, is
seeking judicial review of a decision by an immigration officer (the Officer)
of Citizenship and Immigration Canada [CIC], rendered April 29, 2013, rejecting
his application for permanent residence from within Canada on humanitarian and
compassionate grounds [H&C], pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The applicant was
declared inadmissible to Canada for serious criminality pursuant to s 36(1)a)
of IRPA.
BACKGROUND
[2]
The applicant is a citizen of the United States who arrived in Canada as a child and became a permanent resident. The applicant has
lived in Canada for over 40 years but has never applied for or obtained
Canadian citizenship.
[3]
The applicant has a son who is a Canadian
citizen, and his mother and two sisters also live in Canada.
[4]
The applicant has pleaded guilty and been
convicted of the following offences:
•
two counts of possession of cocaine with intent
to sell and possession of controlled substances;
•
10 counts of breaking and entering with intent;
•
one count of possession of break-in instruments;
•
six counts of conspiracy; and
•
one count of theft.
[5]
He thereby lost his permanent residency on the
grounds of serious criminality, and a deportation order was issued against him
on September 27, 2011.
[6]
The applicant sought an exemption of his
inadmissibility for H&C considerations, based on his establishment in Canada and his family ties in Canada.
DECISION
[7]
The Officer did not find that the applicant had
demonstrated sufficient H&C grounds to warrant an exemption. The Officer
concluded that the hardships that the applicant would face if he had to leave Canada would not be unusual and undeserved or disproportionate.
[8]
The Officer considered the factors submitted by
the applicant, which he identified as the following:
1. his son is bi-polar and needs his help and
support;
2. his mother needs him because she is elderly and his
sister, who has been taking care of her, has been diagnosed with terminal
cancer; and
3. his establishment in Canada and important support network.
[9]
The Officer noted that the applicant’s son lives
with his mother and although the applicant claims that he paid for his son’s
driving lessons and high school, the receipts that were submitted did not prove
this fact. The Officer also noted that the applicant claims that he brings his
son to work daily in order for him to gain work experience, but there was no
evidence of this fact on file.
[10]
The Officer also noted that the applicant’s son
had written a letter with regards to his father’s involvement in his life,
notwithstanding the fact that he lives with his mother. However, the Officer
considered that the applicant was not available for his son during the two
years that he was in prison, and that furthermore, his son is an adult. The Officer
also pointed out that the applicant’s son can count on his mother’s moral
support and assistance and that if he needs financial assistance, the applicant
could help his son from the United States. As a result, the Officer determined
that although this evidence carried some weight, the applicant’s relationship
with his son was not a sufficient H&C factor.
[11]
As for the applicant’s claim that his mother
relies on him now that his sister is suffering from terminal cancer, the
Officer emphasized that although his mother is elderly, it is unclear how the applicant
currently supports her and what she would need from him. The Officer stressed
the fact that the applicant’s mother only states that his support is “vitally
important” without explaining how, and notes that she lives in the Eastern
Townships while the applicant lives in Montreal. The Officer again states that
the applicant was absent for two years, of his own doing, when he was
incarcerated, and this mitigates his submissions as to his interdependency with
his family. The Officer concluded that the applicant’s time spent out of prison
and sober is too short to determine whether he would relapse. The Officer also
stated that she did not believe that the applicant would be available for his
family even if he remained in Canada as a permanent resident, but did not
explain why.
[12]
The Officer then considered the applicant’s
establishment in Canada. The Officer did not find that the applicant had
established himself in the job market, since he has only been working steadily
for two years. His last employment income, before then, was in 2003. Moreover,
the Officer noted that working is generally expected of adult members of
society and therefore, is not sufficient in itself to grant an exception.
[13]
As for his social ties, the Officer noted that
the applicant did not mention friends or close personal relationships in his
application. His counsel submits that he has an important support network
related to his drug and alcohol problems and that it is important that he
continue receiving the same support. The Officer acknowledged the importance of
the support that the applicant has been receiving, but considered that he would
be able to find equivalent resources in the United States.
SUBMISSIONS OF
THE APPLICANT
[14]
The applicant claims that the Officer drew
unreasonable conclusions from the evidence that he provided and also based her
findings on erroneous facts. The applicant alleges that the Officer has
overlooked the improvements that he has brought to his life through
rehabilitation. Moreover, the applicant submits that the Officer has minimized
the seriousness of his son’s condition as well as his sister’s condition. The applicant
argues that because of these omissions, the Officer improperly weighed the
H&C grounds that he submitted.
[15]
The applicant submits that the Officer’s
conclusion with regards to him being unavailable for his family when he was imprisoned
is based on conjecture and is even contradicted by the evidence that he
submitted. Although he was sentenced to two years, he was released on early
parole in May 2010, after approximately six months in prison. The applicant
acknowledges that this early parole was revoked in September 2010, but
emphasizes that it was reinstated shortly after, relying on his letters and a
criminologist’s report.
[16]
The applicant argues that by overlooking the
fact that he was granted early parole, the Officer ignored his early efforts
towards rehabilitation. Furthermore, the applicant claims that the allegation
that he was unavailable for two years was unjustified, as nothing indicated
that he had no contact with his family during that time. In fact, he submits
that the letters from his ex-wife indicate that she and their son were in
contact with him during that time.
[17]
The applicant argues that by limiting her
analysis to the length of his sentence, the Officer failed to adequately weigh
the specific negative and positive aspects of his history. The Officer
dismissed all family considerations because of the presence of serious
criminality. She overlooked the essential issue of the application, which was
to determine whether the positive factors of his situation outweighed the
negative. The applicant claims that by proceeding this way, the Officer
overlooked important aspects of his situation, making her decision
unreasonable.
[18]
As for his level of establishment, the applicant
submits that the Officer’s decision does not account for the criminologist’s
report. The Officer’s analysis of his employment history only goes back to 2003
and concludes that he has only been working reliably for two years. The applicant
states that he worked steadily for many years before 2003, and this was part of
the criminologist’s conclusions. The applicant notes that the period between
2003 and 2009 coincides with his increasing drug and alcohol problems. The
criminologist concluded that his criminal activity was essentially fuelled by
his addictions.
[19]
The applicant emphasizes that he has been sober
for nearly four years now. He argues that the evidence that he has submitted
shows his rapid reintegration in the job market. The applicant argues that the
fact that addiction was the main factor for his serious criminality, and is no
longer an issue, should offset his criminal history. The applicant also
stresses the fact that he has lived in Canada for nearly 50 years; therefore he
has a significant level of establishment. He claims that both these elements
have been disregarded by the Officer.
[20]
Furthermore, the applicant submits that the
Officer made an error by merely considering his son as an adult child. He
argues that although financial assistance and modern methods of communication
could have been sufficient for most 22 year olds, his son suffers from a
serious mental illness which has led him to be hospitalized on several
occasions. The applicant considers that the Officer demonstrated a
misunderstanding of the seriousness of his son’s condition when she mentioned
that his son is still on social assistance and found this to be a negative
factor.
[21]
The applicant argues that he has demonstrated
that he is a pillar in his son’s life. He claims that although his son’s
medication was recently decreased, he is vulnerable to other episodes. As for
the Officer’s findings that there was no documentary evidence demonstrating
that he funds his son’s education and driving lessons, the applicant claims
that these facts were corroborated by a letter from his son.
[22]
The applicant submits that the regular physical
presence of a support network is crucial to his son’s stability and well-being.
[23]
Finally, the applicant argues that the Officer
ignored the impact of his sister’s illness. He claims that if he is deported,
he would face negative consequences in not being present to support her during
her illness and in the event of her death, would be unable to plan or attend
her funeral service. He alleges that the Officer dismissed his argument with
regards to his role as the only source of help and support for his mother,
because he was incarcerated for two years and lives in Montreal. The applicant
submits that as stated in the criminologist’s report, he has had increased
contact with both his sister and his mother since his release and has the
possibility of traveling to the Eastern Townships on a regular basis because
they are a short drive away.
[24]
The applicant submits that these omissions make
the Officer’s decision incomplete and unreasonable. He also argues that the evidence
that he produced demonstrates that the hardships that he would face would be
undeserved or disproportionate. He claims that had the evidence been properly
examined by the Officer, her decision would have been different.
ISSUES AND
STANDARD OF REVIEW
A. Issues
[25]
The applicant submits that the issues are the
following:
1. Has
the Officer rendered a legally erroneous decision or order?
2. Has the Officer rendered her decision in an arbitrary
manner without taking into consideration the elements of proof submitted by the
applicant?
3.
Has the Officer acted in a manner that is contrary to the law itself?
[26]
The Defendant frames the issue as follows:
Did
the Officer commit an unreasonable error by concluding that the applicant did
not file sufficient evidence to demonstrate that there were sufficient H&C
considerations to grant the exemption of his inadmissibility for serious
criminality?
[27]
I consider the relevant issue to be:
Was
the Officer’s decision reasonable?
B.
Standard of Review
[28]
The standard of review applicable to an H&C
decision is reasonableness (see Kisana v Canada (Minister of Citizenship and
Immigration), 2009 FCA 189 at para 18 and Katwaru v Canada (Minister of Citizenship and Immigration), 2010 FC 1277 at para 30 [Katwaru]).
The Officer’s findings must be accorded considerable deference and this Court
will not intervene if the decision falls within the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (see Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47 and Katwaru, cited above, at
para 58).
ANALYSIS
[29]
I find that the Officer’s decision was
reasonable, and dismiss this application for the following reasons.
[30]
It is not the Court’s role to reweigh factors
submitted by an applicant in a claim for an exemption from the requirements for
permanent residency on H&C grounds (see Canada (Minister of
Citizenship and Immigration) v Legault, 2002 FCA 125 at para 11). The
process of evaluating an H&C application is highly discretionary and
fact-based; therefore, the Officer was in the best position to assess the applicant’s
claim (see Katwaru, cited above, at para 58).
[31]
It is apparent from the applicant’s submissions
that he is unsatisfied with the weight that was given to the factors that he
submitted in support of his claim. However, the Officer considered each factor
that the applicant submitted, including the positive factors, such as his son’s
condition and his relationship with him; his sister’s condition; the fact that
his mother is elderly; and his establishment in Canada.
[32]
Decisions made on H&C applications depend on
the weight attributed to positive and negative factors. The seriousness of an
offence can outweigh the positive factors identified by an applicant (see Katwaru,
cited above, at para 61). In this case, the Officer concluded that the positive
factors did not outweigh the seriousness of the applicant’s numerous offences.
Therefore, I reject the applicant’s claim that the Officer failed to consider
the applicant’s family and their needs because of his inadmissibility for
criminality.
[33]
Moreover, the applicant failed to provide
sufficient evidence to support his claim. He did not demonstrate how he
supports his mother or the negative impact on his mother that would be caused
by his removal from Canada. It was similarly unclear in what way his continued
presence in Canada is necessary for his sister in light of her health
condition. Furthermore, he failed to provide evidence of his financial
establishment in Canada, or of any close personal ties beyond his immediate
family. These are all factors that the Officer considered in arriving at his
decision.
[34]
As for the applicant’s contention that the
Officer did not consider the criminologist’s report, this argument is not
persuasive. It is within the Officer’s discretion to grant forensic reports
prepared at the direction of his counsel little weight. The Court recently
discussed the frailties of forensic reports in Czesak v Canada (Minister of Citizenship and Immigration), 2013 FC 1149 at paras 37 to 40:
[37] Moreover, I
am of the view that decision-makers should be wary of reliance upon forensic
expert evidence obtained for the purpose of litigation, unless it is subject to
some form of validation. […]
[38] Our legal
system has a long experience in dealing with forensic experts testifying on
matters relating to technical evidence for the purpose of assisting courts in
their determinations. From that experience, the courts have developed what I
would describe as a guarded and cautionary view on conclusions of forensic
experts which have not undergone a rigorous validation process under court
procedures.
[39] Some of
these procedures intended to validate expert opinions include the early
exchange of reports, by which I mean that normally there is a rebuttal report
as a first line of validation. The parties are normally entitled to obtain
extensive background information on the drafting of the reports, including
production of correspondence between lawyers and experts and knowing whether
there are other reports in existence not being relied upon. These procedures
are further enhanced by the right to question opposing parties in discovery in
relation to issues raised in reports. Most importantly, courts are provided the
opportunity to assess the reliability of the expert opinions under
cross-examination by competent lawyers, often under the direction of their own
experts. In some cases, decision-makers will even involve neutral experts to
assist resolution of more controversial points of opposing forensic experts.
[40] This is
not to say that every expert report prepared for litigation should be dismissed
as having no, or little, weight. But what the court’s experience with forensic
experts does suggest in relation to these reports being proffered before administrative
tribunals where there exists no defined procedure to allow for their
validation, is that caution should be exercised in accepting them at face
value, particularly when they propose to settle important issues to be decided
by the tribunal. In my view therefore, unless there is some means to
corroborate either the neutrality or lack of self interest of the expert in
relation to the litigation process, they generally should be accorded little
weight.
[35]
Moreover, the fact that the Officer did not mention
the criminologist’s report does not equate to her not having considered it (see
Morales v Canada (Minister of Citizenship and Immigration), 2012
FC 164 at para 33 [Morales] and Jnojules v Canada (Minister of
Citizenship and Immigration), 2012 FC 531 at para 35). I agree with the respondent’s
contention that the Officer’s consideration of this factor is evidenced by her
conclusion that his rehabilitation was new and fragile and too recent to know
if he would relapse. As well, the principle finding is that the applicant’s
criminality is related to his substance abuse problems, which are presently
under control. The Officer considered this as a factor, but found it to be
insufficient in the circumstances to outweigh his significant criminality and
the risk of recidivism. I find no fault in his consideration of the evidence.
[36]
The applicant argued that the Officer’s error in
regards to the number of months he spent in prison is significant enough that
it should invalidate the decision. I disagree. The Officer, in his decision,
referred to a period of two years in prison. However, the applicant spent 10
months in prison, was granted parole and released, then had his parole revoked
and spent another three months in prison, for a total of 13 months. I do not
find the Officer’s error in reference to time spent in prison significant
enough to render the decision invalid. In fact, it should be noted that the
applicant’s early parole was revoked because he was employed, yet nevertheless
continued to collect social security payments. I find the applicant’s failure
to respect the laws around the collection of social security benefits, even
under threat of removal and despite his arguments that he has changed his ways,
to be a significant factor supporting the Officer’s conclusion that his
rehabilitation was fragile.
[37]
The applicant argued that his son’s need for his
moral and financial support should militate against his removal. I do not find
this argument persuasive. The applicant’s son lives with his mother, and will therefore
be able to rely on her moral support and assistance. Furthermore, the applicant
will be able to provide his son with financial assistance from the United States and remain in regular contact with him. His son would therefore have the
regular physical presence and support network required by his condition.
[38]
In terms of hardship, the United States is hardly a hardship country for purposes of an H&C analysis. It has a
well-established economy in which the applicant could certainly participate.
Furthermore, he has a brother there who could provide him with family support.
Geographically, it is so close to Canada that the applicant would be able to
remain physically close to his son and see him regularly.
[39]
As for the applicant’s argument in regard to his
continuing need for support related to his prior drug and alcohol problems, the
Officer considered that this support could be found in the United States. I agree with this analysis.
[40]
The Officer considered the H&C factors
presented by the applicant, but found that they were insufficient to outweigh
his significant criminality.
[41]
As a result of the foregoing, I find that the
Officer’s decision is reasonable, and certainly falls within the "range of possible, acceptable outcomes which are
defensible in respect of the facts and law", particularly given the
“highly discretionary and fact-based nature” of the
decision at hand. It was within the Officer’s discretion to reject the
applicant’s application on the basis that he had not demonstrated sufficient
H&C considerations to grant a waiver of his criminal inadmissibility.
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