Docket: IMM-7956-13
Citation:
2014 FC 704
Ottawa, Ontario, July 15, 2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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GLEN REGAN ST. JOHN
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of K. Roy-Tremblay, a Director of Case Determination at the Case
Management Branch of Citizenship and Immigration Canada [the Officer], pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [the Act]. The Officer refused to exempt the Applicant’s permanent
residence visa application from the criminal inadmissibility provisions of the
Act on humanitarian and compassionate [H&C] grounds, pursuant to subsection
25(1) of the Act.
I.
Issues
[2]
The issues in the present application are as
follows:
A.
Was the Officer’s decision to refuse the
Applicant’s request for an exemption from inadmissibility on criminal grounds,
on the basis of H&C considerations, unreasonable?
B.
Did the Officer breach their duty of procedural
fairness to the Applicant?
II.
Background
[3]
The Applicant is a citizen of Guyana. In February, 1989, he moved from Guyana to the United States. On July 15, 1992, he
received a cumulative sentence of six years imprisonment from the United States
District Court for the Western District of North Carolina. This sentence was
based on eight counts on three charges:
i.
Conspiracy to possess with intent to distribute
in excess of 50 grams of cocaine base and cocaine (USC 21 § 846);
ii.
Use, carry firearm during drug trafficking crime
and aiding and abetting same (USC 18 § 924(c)(1), (2)); and
iii.
Possess with intent to distribute cocaine base
and aiding and abetting in same (USC 21 § 841(a)(1)).
[4]
After his release, the Applicant returned to Guyana. The Applicant then entered Canada in December, 1998, and again in March, 2001. The
Applicant married Michelle Dianne St. John, a citizen of Canada, on October 20, 2001.
[5]
On May 2, 2002, the Applicant applied for
refugee protection in Canada. His claim was rejected on October 29, 2003. On
April 4, 2006, the Applicant was informed by the Ministry of Citizenship and
Immigration [the Minister] that he met the eligibility requirements to apply
for permanent residency as a member of the Spouse or Common Law in Canada class. The Applicant and his representatives made several requests for updates on
the status of his file for the next several years.
[6]
On February 22, 2010, the Applicant wrote to the
Minister, acknowledging that his criminal convictions in the United States rendered him inadmissible for permanent residency owing to the criminal
inadmissibility provisions in 36(1)(b) of the Act. The Applicant also
acknowledged that he was ineligible to apply for rehabilitation of his inadmissibility
as per 18(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations]. The Applicant asked for an H&C exemption
from his criminal inadmissibility, on the grounds of hardship to the Applicant,
his wife and her child, and the Applicant’s efforts to lead a constructive life
in Canada, pursuant to 25(1) of the Act [the H&C Application].
[7]
On or around May 23, 2013, Christina Iafrate, a
Supervisor at the Canadian Immigration Centre in Etobicoke, advised the
Applicant’s representative to submit a criminal rehabilitation application [the
Rehabilitation Application]. At that time, the Applicant was represented by
Cindy Ramkissoon-Shears, an immigration consultant. According to her affidavit,
Ms. Ramkissoon-Shears informed Ms. Iafrate of her belief that the Applicant was
ineligible for rehabilitation given the nature of his convictions.
[8]
In a facsimile dated June 18, 2013, the Minister
informed the Applicant that in assessing his H&C Application, it had
developed concerns about the Applicant’s known aliases, his place and date of
birth, and his legal name. The Minister requested that the Applicant submit
several legal documents, including police clearances and fingerprints, to
confirm the Applicant’s identity and criminal record history. The Minister also
reiterated its belief that the Applicant should submit a Rehabilitation
Application.
[9]
According to her affidavit, Ms.
Ramkissoon-Shears contacted Ms. Iafrate following the receipt of the June 18,
2013, request to seek clarification on what should be submitted to the
Minister. She was informed by Ms. Iafrate that it was unnecessary to provide
the information requested by the Minister on June 18, 2013, if the Applicant
submitted a Rehabilitation Application:
13…I contacted Officer Iafrate at Etobicoke
CIC, informing her of this request and if it is necessary to respond, as a
Criminal Rehabilitation application was being prepared for submittal.
14. Further it was discussed with [sic] Officer
that some of the requests made in the letter dated June 8, 2013 was
unreasonable, as it was suggested for Mr. St. John to obtain fingerprints and
police clearances under his alias names and within his FBI Clearance this
information was already available.
15. Officer Iafrate instructed to continue with
submitting the Criminal Rehabilitation application and “not to worry” about the
follow up for the Waiver.
[10]
In her affidavit, Ms. Iafrate disputes this
characterization of her conversation with Ms. Ramkissoon-Shears:
8…While I do not remember the specifics of my
conversation that took place on or about June 17, 2013, based on my usual
practice it seems highly unlikely that I would advise an applicant to ignore a
request for further information from another decision-maker. While I may have
discussed the benefit of filing an additional application for criminal
rehabilitation, I truly doubt that I would have advised Cindy Ramkissoon-Shears
to ignore the decision-maker’s request for additional information.
[11]
The Applicant never provided the information
requested by the Minister on June 18, 2013, but submitted a Rehabilitation
Application on June 26, 2013.
[12]
On November 20, 2013, the Officer denied the
Applicant’s H&C Application.
[13]
On November 22, 2013, Ms. Ramkissoon-Shears
contacted Ms. Iafrate to inquire why a decision on the Rehabilitation
Application had not been made. Subsequent to this inquiry, Ms. Iafrate
discovered that there had been an internal filing error with respect to the
Rehabilitation Application, which had delayed its review.
[14]
On November 25, 2013, Ms. Iafrate wrote to the
Applicant, stating that notwithstanding the denial of the Applicant’s H&C
Application, the Minister would consider the Applicant’s Rehabilitation
Application, and re-consider the Applicant’s H&C Application should his Rehabilitation
Application be successful.
[15]
On February 4, 2014, the Minister informed the
Applicant that his Rehabilitation Application was denied.
[16]
The primary basis for the Officer’s refusal of
the Applicant’s H&C Application was that the Applicant did not respond to
the Minister’s request of June 18, 2013.
[17]
The Officer noted the Applicant’s conviction on
six counts of possessing with intent to distribute cocaine pursuant to USC 21 §
846. The Officer found that this offence was equivalent to the trafficking
offence described in subsection 5(1) of the Controlled Drugs and Substances
Act, SC 1996, c 19 [Controlled Drugs and Substances Act] in Canada, an
offence which is punishable by imprisonment to life. As a result, the Officer
confirmed that the Applicant was inadmissible pursuant to 36(1)(b) of the Act
and not eligible for rehabilitation pursuant to 18(2) of the Act.
[18]
The Officer considered that the Applicant is
married and has a stepdaughter and grandchild in Canada. The Officer
acknowledged that the Applicant and his wife rely on each other for emotional
support and that the Applicant’s wife relies on the Applicant for financial
support. However, the Officer concluded that there was insufficient evidence to
suggest that the Applicant’s stepdaughter is dependent on the Applicant
financially and that her best interests would suffer if he was removed from Canada.
[19]
The Officer determined that the Applicant is
somewhat established in Canada. In support of this finding, the Officer noted
that the Applicant coaches youth soccer, is currently unemployed due to a knee
injury caused by a workplace accident, and has received letters of support from
colleagues and friends. These letters attest to his good character, remorse
over his criminal convictions, and positive involvement in the community.
[20]
Notwithstanding the factors indicating his
positive establishment in Canada, the Officer concluded that the Applicant’s
convictions in the United States were of a serious nature. Further, the Officer
was not convinced of the Applicant’s identity or that he had no further
criminal convictions, as there were discrepancies in the documents provided by
the Applicant. These included two documented places of birth and nine known
aliases. These concerns were communicated to the Applicant by the Minister on
June 18, 2013, but no response was received. With respect to this evidence, the
Officer concluded:
The information required is essential for me in
order to make an informed decision. Without that information, I am unable to
confirm Mr. St. John [sic] identity and I am unable to verify that he has not
reoffended…Despite some positive factors in favor of Mr. St. John [sic] request
for an exemption of his serious criminal inadmissibility, I am not satisfied
that Mr. St. John has not reoffended and that he is not inadmissible on other
grounds.
III.
Standard of Review
[21]
The standard of review for findings of fact is
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9), and correctness
for issues of procedural fairness (Singh v Canada (Minister of Citizenship
and Immigration), 2012 FC 855, at para 24).
IV.
Analysis
[22]
Excerpts of the relevant legislation are
attached as Appendix A.
A.
Was the Officer’s Decision to Refuse the
Applicant’s Request for an Exemption from Inadmissibility on Criminal Grounds, on
the Basis of H&C Considerations, Unreasonable?
[23]
The Applicant argues that the Officer
unreasonably equated the Applicant’s convictions for possession with intent to
distribute cocaine pursuant to USC 21 § 846 with the trafficking offence
described in subsection 5(1) of the Controlled Drugs and Substances Act, when
it should have been equated with the possession for purposes of trafficking
offence in subsection 5(2). While the Applicant claims the crimes are
conceptually distinct he acknowledges that a conviction for either would render
the Applicant inadmissible.
[24]
The Applicant also disagrees with the Officer’s
conclusions as to the hardship that would be suffered by the Applicant’s
step-daughter and his wife if the H&C Application was not granted, as the
Applicant contends he is an active participant in their lives.
[25]
With regard to the adequacy of reasons, the
Applicant argues that given the evidence of the Applicant’s identity before the
Officer, it is unclear why the Applicant’s H&C Application was denied (Bustamante
v Canada (Minister of Citizenship and Immigration), 2011 FC 1198, at para
35)
[26]
The reasons are adequate, as they demonstrate
why the Officer made their decision and allow me to determine whether it is within
the range of possible, acceptable outcomes (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
paras 14, 21-22). The reasons demonstrate that the Officer was concerned about
the unresolved issues regarding the Applicant’s identity and criminal history
and that the Officer decided primarily on this basis.
[27]
The Officer’s decision turned on their outstanding
concerns about the Applicant’s identity and criminal history since his
convictions in the 1990s. The Applicant did not respond to the request for
information made by the Minister on June 18, 2013. Given that the requested
information was central to the H&C Application, the Officer’s decision was
reasonable.
[28]
The Applicant’s other arguments relate to issues
that are not determinative of this application, and amount to an attempt to
re-weigh the evidence.
[29]
Further, the Applicant does not establish that
the Officer’s erroneous citation of subsection 5(1) of the Controlled Drugs and
Substances Act had any meaningful impact on the Officer’s decision, as a
conviction under either 5(1) or 5(2) would result in criminal admissibility,
and both are reflective of the Officer’s stated concern of the seriousness of
drug-related crime. The Applicant’s arguments regarding financial dependency
and the failure to properly consider the Applicant’s relationship with his
family amount to a disagreement with the conclusions drawn by the Officer (Gazlat
v Canada (Minister of Citizenship and Immigration), 2008 FC 532, at para
25).
B.
Did the Officer Breach their Duty of Procedural
Fairness to the Applicant?
[30]
The Applicant argues that his representatives
diligently pursued his claims, and both the Applicant and Ms. Ramkissoon-Shears
have sworn affidavits stating that Ms. Iafrate told the Applicant he did not
need to comply with the request of June 18, 2013. Given that the Officer
decided his H&C Application on the basis that the documents requested on
June 18, 2013, were not submitted, the Officer breached their duty of
procedural fairness to the Applicant (Zhu v Canada (Minister of Citizenship
and Immigration), 2013 FC 155, at paras 34-35; Benitez v Canada
(Minister of Citizenship and Immigration), 2006 FC 461; Sketchley v
Canada (Attorney General), 2005 FCA 404).
[31]
In his Reply Memorandum, the Applicant argues
that it is irrelevant that the Minister agreed to re-open the H&C
Application in the event that the Applicant’s Rehabilitation Application was
successful, as it does not rectify the procedural unfairness described above.
The Applicant also notes that Ms. Iafrate’s affidavit does not deny that she
told Ms. Ramkissoon-Shears that the Applicant was not required to submit a
response to the June 18, 2013, request.
[32]
The Respondent notes that the Minister
encouraged the Applicant to submit his Rehabilitation Application and would
have re-opened the Applicant’s H&C Application if the Applicant’s
Rehabilitation Application had been successful. The Respondent argues that this
is indicative of procedural fairness. Further, Ms. Iafrate’s affidavit
demonstrates that she did not tell Ms. Ramkissoon-Shears to ignore the request
made by the Minister on June 18, 2013. Accordingly, there can be no breach of
procedural fairness.
[33]
The Applicant is correct that if he was
instructed not to submit a response to the June 18, 2013, request, there was a
breach of procedural fairness, as his H&C Application was decided largely
on the basis of his failure to respond to that request (Zhu, at paras
34-35). The affidavits of Ms. Iafrate and Ms. Ramkissoon-Shears dispute whether
this occurred, but I accept Ms. Ramkissoon-Shears version of events. Being
unresponsive without a reason does not fit with the course of conduct
demonstrated by the Applicant and his representatives, who otherwise
demonstrated diligence in pursuing his claims with the Minister.
[34]
In contrast, the Minister did not appear to be
diligent in many respects – the Applicant’s H&C Application took years to
process, his Rehabilitation Application was mis-filed, and he was persuaded to
apply for rehabilitation by the Minister despite his stated belief that he was
ineligible, a belief that seems plainly supported by the legislative
requirements in subsection 18(1) of the Act. This conduct shows that the
Minister’s representatives have not been diligent or organized in relation to
the Applicant’s file.
[35]
Moreover, Ms. Iafrate cannot recall the
specifics of the conversation she had with Ms. Ramkissoon-Shears, whereas Ms.
Ramkissoon-Shears is unequivocal about what occurred during that conversation.
Considering the evidence in its entirety, I am persuaded that Ms.
Ramkissoon-Shears’ description of events is accurate, and that there was a
breach of procedural fairness.
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