Dockets: IMM-2916-13
IMM-2918-13
Citation:
2015 FC 259
Ottawa, Ontario, March 2, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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VINCENT EVANS
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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
I.
Nature of the Matters and Background
[1]
Pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], Mr. Evans
[the Applicant] applies for judicial review of two decisions by the same
immigration officer [the Officer]: one, denying his application for permanent
residence because he was inadmissible and refusing to grant the exemptions requested
by the Applicant under subsection 25(1) of the Act; and the other,
refusing to issue him a temporary resident permit [TRP] under subsection 24(1)
of the Act. These two applications for judicial review were heard
together pursuant to the orders of the Court dated October 15, 2014, granting
leave to apply for judicial review.
[2]
The Applicant asks the Court to set aside both
decisions and return these matters to a different officer for re-determination.
These reasons for judgment determine both applications for judicial review.
Accordingly, I direct that a copy of this judgment and reasons be placed in
each of Court files IMM-2916-13 & IMM-2918-13.
[3]
The Applicant is a 35 year-old citizen of Saint Lucia who entered Canada on October 5, 2003. In September, 2010, after his refugee claim was
denied and his application for a pre-removal risk assessment was refused, the
Applicant attempted to regularize his status by applying for permanent
residence as a member of the spouse or common-law partner in Canada class.
[4]
However, on December 18, 2012, the Applicant was
convicted of trafficking in cocaine and of obstructing a peace officer. The
Officer sent him a letter two days later, advising that his application may
have to be refused as it appeared that he was inadmissible to Canada under
paragraphs 36(1)(a) and 36(2)(a) of the Act. The Applicant responded by
a letter dated January 31, 2013, wherein he accepted that he was
inadmissible but claimed that there were humanitarian and compassionate [H&C]
grounds to let him stay in Canada. He asked for either a TRP or an exemption
from the provisions of the Act that rendered him inadmissible.
II.
The Decisions under Review
A.
The Spousal Sponsorship Decision [the Sponsorship Decision]
[5]
By letter dated April 9, 2013, the Officer
refused the application for permanent residence, finding that the conviction
for trafficking rendered the Applicant inadmissible for serious criminality
under paragraph 36(1)(a) of the Act, and that the conviction for
obstruction of a peace officer made him inadmissible for ordinary criminality
under paragraph 36(2)(a) of the Act.
[6]
Although the Officer accepted that the
Applicant’s relationship with his sponsor was genuine, she concluded that the
H&C grounds cited by the Applicant were insufficient to overcome his
inadmissibility. With respect to establishment, the Officer noted that the
Applicant had been continuously employed as a barber in Saint Lucia for four
years before coming to Canada, and so rejected his submission that he would not
be able to find a job if he was deported to Saint Lucia.
[7]
The Officer recognized that the Applicant had
four minor children whose interests were affected: Misha and Inika, who were
born in Saint Lucia and still live there; Malachi, who was born in Canada but
returned to Saint Lucia with his mother when she was removed from Canada; and
Amai, who was born in Canada and who is the daughter of the Applicant and the
partner who is trying to sponsor him. The sponsor also has two other daughters
who view the Applicant as their father.
[8]
The Applicant had argued that his children in Saint Lucia would be disadvantaged by his removal and consequent loss of income. However,
the Applicant supplied insufficient proof that he supported those children
financially, and the Officer was not satisfied that he would be unemployed in Saint Lucia. As for Malachi, the Officer noted that he has a language disorder that
requires a speech therapist. A medical letter submitted by the Applicant stated
there were no permanent speech therapists in Saint Lucia and an appropriate
school is difficult to find, but the Officer found that this letter did not say
whether there were any temporary therapists or that a school would be
impossible to find. As there was no other evidence on this issue, the Officer
said that she could not determine what resources were available to Malachi in Saint Lucia. Moreover, the Applicant had not explained the reason why Malachi’s mother was
removed or whether there was any possibility that she could return to Canada.
[9]
The Officer did consider the impact of the
Applicant’s removal on Amai to be a significant and compelling positive factor,
but noted nonetheless that there was little information to show that the
Applicant could neither support her financially from Saint Lucia nor bring her
with him if he is removed. The Applicant’s removal would also negatively affect
his partner, but the Officer noted that she was at least partially aware that
the Applicant had no status when she began a relationship with him. There was
also no proof that she could not visit him in Saint Lucia.
[10]
The Officer also accepted that his partner’s
other two children, Cheyelle (now 22 years old) and Chamaul (now 19 years old),
both view the Applicant as their father. However, there was no reason to
believe that he supported them financially or that he could not maintain a
relationship with them if he was removed.
[11]
Finally, the Officer weighed the positive
factors against the gravity of the crime and the court’s decision to confine
him to his residence for six months as punishment. These were his first
convictions, but the Officer noted that the Applicant had been charged with
crimes before. Despite expressing remorse and an intention to improve, the
Applicant had not attended any rehabilitation program. Ultimately, the Officer
decided that the hardships in this case were not unusual and undeserved or
disproportionate, and added that “the gravity of the
PA’s [Applicant’s] crime does not outweigh the positive factors”
(emphasis added).
B.
Temporary Resident Permit Decision [the TRP Decision]
[12]
In separate reasons also dated April 9, 2013,
the Officer refused to issue a TRP to the Applicant (although the letter
communicating this decision to him is incorrectly dated October 3, 2012). In
refusing the TRP, the Officer gave essentially the same reasons with respect to
the H&C considerations as she did in the Sponsorship Decision.
[13]
The only significant difference in this decision
was in how the Officer treated the circumstances surrounding the Applicant’s
convictions. To her earlier observations, the Officer added that the fact that
the Applicant served his sentence in the community was a positive factor
insofar as it showed that the court did not consider the Applicant to be a
danger to society. Nevertheless, the Officer noted that the Applicant’s conduct
was still tightly restricted by the court and that his alleged interest in rehabilitation
programs seemed self-serving. Similar to the Sponsorship Decision, the Officer
concluded that “the grave nature of the PA’s
[Applicant’s] crime does not outweigh the humanitarian and compassionate
factors put forth by the PA. He has not provided sufficient evidence of his
remorse nor that he will not reoffend” (emphasis added).
III.
The Parties’ Arguments
A.
The Applicant’s Arguments
[14]
The Applicant argues that the Officer failed to
consider probative evidence when rendering her decision on his establishment in
Canada (citing Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425 (QL) at para 17, 157 FTR 35 (TD)). The
Applicant says that the Officer’s decision was unreasonable because it failed
to properly consider his evidence that he had to abandon his barbershop in Saint Lucia because of threats from drug dealers. Furthermore, he says that the Officer
ignored the high rate of unemployment in Saint Lucia as evidenced by the fact
that his brothers had been unemployed in Saint Lucia ever since they returned,
and failed to properly consider other indicia of establishment such as the
family support that he has in Canada: Raudales v Canada (Minister of
Citizenship and Immigration), 2003 FCT 385 at para 19; Jamrich v Canada (Minister of Citizenship and Immigration), 2003 FCT 804, 29 Imm LR (3d) 261.
[15]
As to the best interests of the children, the
Applicant says the Officer’s finding was ambiguous since she said that he did
not financially support his family and yet found there was no evidence he could
not continue to support his family from Saint Lucia. As for Malachi, the
Applicant says that the Officer drew unwarranted inferences from the doctor’s
letter, and that there was no basis for the Officer to find that Malachi’s
mother might be able to return to Canada.
[16]
The Applicant also contends that the Officer did
not fulfill her duty to explain her findings about the gravity of his crime in
clear and unmistakable terms (citing Hilo v Canada (Minister of Employment and Immigration) (1992), 130 NR 236, 15 Imm LR (2d) 199
(CA)). The Applicant argues that the Officer’s conclusion with respect to his
criminality is ambiguous, as she states in both decisions that the gravity of
his crime did “not outweigh” the positive
factors but nevertheless refused the applications. According to the Applicant,
this is not necessarily just a typographical error.
[17]
With respect to the TRP decision, the Applicant repeats
many of his arguments with respect to the Sponsorship Decision, but also argues
that it was unreasonable for the Officer to dismiss his interest in
rehabilitation as self-serving; he had the obligation to establish his case and
the Officer would have likely found his chances of rehabilitation to be minimal
had he not shown interest in such programs. In this regard, the Applicant
relies upon the decision in Diaz v Canada (Citizenship and Immigration),
2010 FC 319 at para 37.
B.
The Respondent’s Arguments
[18]
The Respondent emphasizes that decisions with
respect to both the TRP and the H&C application deserve deference as they
are exceptional and highly discretionary, and require a balancing of various
factors by the Officer. The Respondent argues that the Officer adequately
considered all of the positive factors but was entitled to give more weight to
the Applicant’s criminality. The Respondent argues that this Court should not
reweigh evidence before the Officer.
[19]
According to the Respondent, the Applicant could
return to Saint Lucia and work as a barber and possibly other positions since
he now has additional experience here in Canada. The fact that better
employment opportunities may be available to the Applicant here in Canada is not sufficient reason to grant an exemption from the Act or a TRP.
[20]
The Respondent argues that the best interests of
the children is not a determinative factor, and the Applicant’s disagreement
with the weight that factor was assigned does not disclose an error. The
Respondent says that the letter from the Applicant’s mother is insufficient
evidence as to the Applicant’s support of his children in Saint Lucia. The Applicant did not provide any corroborative evidence in this regard.
[21]
As to the doctor’s letter concerning Malachi,
the Respondent says that the Officer’s conclusion that there may be temporary
services is plausible. The letter upon which the Applicant relied did not
conclude that such services would be impossible to obtain but, rather, only
implied that they may be difficult to obtain for the Applicant’s son.
[22]
The Respondent says that when one reads the
Officer’s decisions as a whole, it is clear that she made a typographical error
when she said that the gravity of the Applicant’s crime did “not” outweigh the
positive factors. The Respondent says that such an error should not attract
relief, since it is clear from the rest of the decision that the Officer meant
the opposite (citing Cartier v Canada (AG), 2002 FCA 384 at paras 32-33,
[2003] 2 FCR 317). The Respondent also points out that the quality of the
Officer’s reasons is not an independent ground of review (citing Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at para 22, [2011] 3 S.C.R. 708).
[23]
As to the TRP, the Respondent repeats some of
the same arguments with respect to the Sponsorship Decision and emphasizes that
the Applicant’s interest in rehabilitation is self-serving and supported by
nothing but the Applicant’s say-so; there is no corroboration such as a letter
from the John Howard Society.
IV.
Issues and Analysis
A.
Standard of Review
[24]
The parties agree in their written memoranda
that the standard of review for both decisions is reasonableness, so the only
issues in these applications are whether the Officer’s decisions were
reasonable.
[25]
The appropriate standard of review for an
H&C decision is that of reasonableness since it involves questions of mixed
fact and law: see, e.g., Kisana v Canada (Minister of Citizenship and
Immigration), 2009 FCA 189 at para 18, [2010] 1 FCR 360; Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113 at paras 30, 32-33, 37, 372 DLR (4th) 539 [Kanthasamy];
Dunsmuir v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 S.C.R. 190 [Dunsmuir].
In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2
SCR 817 at para 62, 174 DLR (4th) 193, the Supreme Court of Canada stated that,
when reviewing an H&C decision, “considerable
deference should be accorded to immigration officers exercising the powers
conferred by the legislation, given the fact-specific nature of the inquiry,
its role within the statutory scheme as an exception, the fact that the
decision-maker is the Minister, and the considerable discretion evidenced by
the statutory language.”
[26]
Issuance of a TRP under subsection 24(1) of the Act
is also a highly discretionary decision, and it too attracts the reasonableness
standard of review (see: e.g., Ali v Canada (Citizenship and Immigration),
2008 FC 784 at para 9, 73 Imm LR (3d) 258; Vidakovic v Canada (Citizenship
and Immigration), 2011 FC 605 at para 15, [2011] FCJ No 808 (QL); and Alvarez
v Canada (Citizenship and Immigration), 2011 FC 667 at para 18; Dunsmuir
at para 53).
[27]
Accordingly, the Court should not interfere if
each of the Officer’s decisions is intelligible, transparent, and justifiable
and falls within the range of possible, acceptable outcomes that are defensible
in respect of the facts and the law. It is not up to this Court to reweigh the
evidence that was before the Officer, and it is not the function of this Court
upon judicial review to substitute its own view of a preferable outcome: Dunsmuir
at para 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 at paras 59, 61, [2009] 1 S.C.R. 339.
B.
Were the Officer’s Decisions Reasonable?
(1)
The Sponsorship Decision
[28]
The Officer in this case did not ignore the
evidence before her or otherwise err in finding that the Applicant had not
proven that he would be unable to find employment in Saint Lucia. It was
reasonable for the Officer to conclude that the Applicant could return to Saint Lucia and work as a barber. The fact that the Applicant’s brothers had apparently
remained unemployed in Saint Lucia following their removal from Canada was reasonably found by the Officer to be insufficient evidence as to his inability
to be employed upon return.
[29]
Also, it cannot be said that the Officer here
was not alert and sensitive to the best interests of each of the Applicant’s
several children as well as his sponsor’s two children. For example, the
Officer specifically noted that the emotional and financial impact upon his
biological child in Canada was a compelling positive factor to forestall the
Applicant’s removal. However, there was little evidence to show that the
Applicant could not support this child from Saint Lucia or that he could not
live with her there. In this regard, the Federal Court of Appeal’s decision in Owusu
v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at para 5,
[2004] 2 FCR 635, deserves note, where the Court stated that: “ … 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.”
[30]
I agree with the Respondent that when one reads
the Officer’s Sponsorship Decision as a whole, and in view of her reasons as to
the Applicant’s establishment and the best interests of the children affected
by the Applicant’s removal, it is clear that the word “not” in the last
paragraph of this decision, with reference to the gravity of the Applicant’s
crime, is a typographical error. Such an error does not negate the rest of the
Officer’s analysis and reasons for her decision. It is clear from her reasons
as well as the decision letter itself that the Officer intended to state that
the Applicant’s criminality “does” outweigh the positive factors, and this sort
of error should not attract relief.
[31]
For example, in Lu v Canada (Citizenship and Immigration), 2007 FC 159 [Lu], Mr. Justice Simon Noël dealt with
a situation where a word had been inserted in the officer’s decision letter.
Justice Noël stated:
[29] … The fact that Officer Tsang
wrote in her letter to the Applicant that “you are therefore criminally
inadmissible to Canada” is in my opinion an error which can be associated to a
typographical error and it is not of a conclusive nature. … Officer Tsang,
although she makes reference to the “inadmissibility” provisions of IRPA, did
not conclude that the Applicant was inadmissible due to criminality under
section 36 of the Act.
[30] Justice Russell in Petrova v. Canada (Minister of Citizenship and Immigration), 2004 FC 506, addressed the
implications of a typographical error in a decision’s makers reasons under
review by the Court. At paragraph 51 of Petrova, above, Justice Russell
writes:
When a mistake is typographical in
nature, the Court should not interfere with the decision, especially if the
error does not appear to have been a misunderstanding of the evidence. Nadon J. in Sandhu v. M.C.I. stated the following regarding
a typographical error in that case:
... It is
clear from reading the record that the Refugee Division did not misunderstand
the situation regarding the visit of two men noted by the plaintiff. The
plaintiff testified that two men visited Pritam Singh's room. He did not
testify that those individuals visited him, and I feel sure that the word
"claimant" contained in the sentence:
The
claimant told the police that on two occasions he saw two individuals whom he
could not identify visiting the claimant in his room...
is a
typographical mistake. In any case, if there is an error it is not a conclusive
error and certainly could not justify intervention by the Court.
Sandhu
v. Canada (Minister of Citizenship and Immigration),
2002 FCT 134
In my view, there is no reason why the error
made by Officer Tsang should result in the Court intervening in the case at
bar. There is no indication in Officer Tsang’s letter that she misunderstood
the evidence … [Emphasis in Lu]
[32]
In view of the foregoing, therefore, I find that
the Officer’s Sponsorship Decision is understandable and justifiable and, also,
falls within the range of possible, acceptable outcomes that are defensible in
respect of the facts and the law.
(2)
The TRP Decision
[33]
The objectives and exceptional nature of an
exemption under subsection 24(1) of the Act have been described in
detail by my colleague Justice Shore in Farhat v Canada (Minister of
Citizenship and Immigration), 2006 FC 1275, 302 FTR 54 [Farhat]:
[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.)
[34]
Furthermore, although an officer is not expressly
compelled to look at the best interests of any children affected in a TRP application
(Farhat at para 36), the Officer here did so anyway. The Officer’s
assessments in this regard show that she was alive and attentive to the
Applicant’s whole situation.
[35]
In refusing the TRP application, the Officer
provided essentially the same reasons as she had with respect to the
Sponsorship Decision. The only significant difference in the TRP Decision was
in how the Officer treated the circumstances surrounding the Applicant’s
criminal convictions. The Officer added to her earlier observations that the
fact the Applicant had served his sentence in the community was a positive
factor insofar as it showed that the court did not consider the Applicant to be
a danger to society. However, the Applicant’s inquiries into rehabilitation
courses were found by the Officer to be self-serving, and she noted that he had
not actually attended or completed any rehabilitation of his own volition. In
light of that, it was reasonable for the Officer to determine that the
Applicant had provided insufficient evidence of his remorse or as to whether he
would not reoffend.
[36]
It is implicit in the TRP Decision that the
Officer refused the Applicant’s request for a TRP since she was not “of the opinion that it is justified in the circumstances”
(Act, s 24(1)), nor were there sufficiently “compelling
reasons” (Farhat at para 22). The Officer considered the negative
and positive factors as presented by the Applicant. Her reasoning was
understandable and justifiable and, also, her decision falls within the range
of possible, acceptable outcomes that are defensible in respect of the facts
and the law.
[37]
The best interests of the Applicant’s children
were undoubtedly positive considerations, but ultimately those were outweighed
by the seriousness of the Applicant’s crimes and lack of rehabilitative
efforts. It is not for this Court to engage in an exercise of reweighing those
factors. While a different decision could have been made, it has not been
established that the decision made was not available to the Officer under the
law or lacks a proper factual foundation so as to be unreasonable.
V.
Conclusion
[38]
In the result, therefore, the Applicant’s
applications for judicial review should be and are hereby dismissed. Neither
party suggested a question for certification; so, no such question is
certified.
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