Docket: IMM-283-14
Citation:
2015 FC 632
Ottawa, Ontario, May 14, 2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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NARESH RAMNANAN
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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.
Introduction
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the IRPA or the Act] challenging a decision by an immigration
officer [the Officer] refusing the applicant’s request for a Temporary Resident
Permit [TRP] pursuant to section 24 of the Act.
[2]
The applicant is seeking an order quashing the
Officer’s decision and sending the matter back for reconsideration by a
different officer.
II.
Background
[3]
The applicant, Mr. Naresh Ramnanan, is a citizen
of Trinidad and Tobago. He entered Canada in February 1988 seeking refugee
protection and became a permanent resident on December 10, 1992 through the
Refugee Backlog Clearance Program.
[4]
A removal order was issued against the applicant
on January 27, 2000 because he was found to be criminally inadmissible. The
applicant appealed the order to the Immigration Appeal Division [IAD], but his
appeal was denied on December 12, 2001. He brought a motion to re-open the IAD
appeal in June 2002, which was initially denied. He brought a judicial review
of that decision, which was allowed on consent and the IAD re-opened the appeal.
[5]
In November 2004, the IAD granted him a stay of
removal subject to certain terms and conditions, and the appeal was to be reconsidered
in May 2007. The applicant subsequently breached the condition that he not
commit any criminal offences when he was convicted of several offences on
October 27, 2005 (possession of a Schedule I substance contrary to subsection
4(3) of the Controlled Drugs and Substances Act, SC 1996, c 19,
possession of proceeds of property obtained by crime, unauthorized possession
of a prohibited and restricted weapon, and possession of proceeds of crime). He
was sentenced to 90 days imprisonment, served concurrently, and 12 months of
probation. He was also subject to a mandatory prohibition order pursuant to
section 109 of the Criminal Code, RSC 1985, c C-46. The applicant was
released from custody on December 25, 2005.
[6]
As a result of his criminal convictions, the
applicant was stripped of his permanent resident status by operation of law on
March 28, 2006. The IAD cancelled his stay of removal and terminated his appeal
in April 2007 and this decision was upheld by this Court on judicial review (Ramnanan
v Canada (Citizenship and Immigration), 2008 FC 404, 325 FTR 248).
[7]
The applicant applied for an exemption to the
permanent residence requirements on humanitarian and compassionate grounds
[H&C] and for a Pre-Removal Risk Assessment [PRRA]. These applications were
refused in May and June 2010, respectively.
[8]
His criminal record shows 17 criminal
convictions related to 10 separate events between November 1996 and October
2006, six of which were convictions for a failure to comply with a
recognizance. On January 1, 2012, the applicant was arrested and charged with
several offences which were later withdrawn. He entered into a peace bond in
January 2012.
[9]
The applicant then applied for a TRP on June 10,
2013 with the primary goal of remaining in Canada to continue to provide care
for his two youngest children. An interim stay of removal was granted by
Justice Heneghan of this Court on June 18, 2013. He was later scheduled for
removal on March 17, 2014 and sought a stay of removal, which was granted by
Justice Russell of this Court on March 13, 2014.
[10]
The applicant has two children from his first
marriage (Tricia and Nicolas) and two children from a common-law relationship
with Ms. Terri Brown (Cheyenne and Naresh Jr.). At the time of the TRP
application, Tricia was 26 years old, Nicolas was 19, Cheyenne was 17, and
Naresh Jr. was 15. Both Cheyenne and Naresh Jr. were living with the applicant
full-time and they were fully dependent on him. Tricia and Nicolas sometimes
stayed at his home. He also has one step-daughter (Dzsenifer) with his second
wife, Ms. Krisztina Ramnanan, both of whom are currently living in England.
[11]
The applicant has been the primary caregiver for
Cheyenne and Naresh Jr. because their mother suffered from drug addiction and
her current whereabouts are unknown. The Children’s Aid Society [CAS] has been
involved in their lives from a very early age – Cheyenne was taken into foster
care in or about 1998 and Naresh Jr. was taken into foster care at birth after
traces of cocaine were found in his mother’s urine. The applicant sought sole custody
and has cared for Cheyenne and Naresh Jr. since 2001, when they were aged six
and three.
[12]
Both Cheyenne and Naresh Jr. have had their own
share of difficulties. Cheyenne was diagnosed with Fetal Alcohol Syndrome
Disorder [FASD] and at one point dropped out of school. In May 2010 she ran
away from home and CAS briefly took her into foster care, but she ran away and
returned to the applicant’s home. On March 24, 2012, at the age of 16, Cheyenne gave birth to a son, Luis. She is a single mother and does not have sole custody,
but there is a family court order in place which gives her access to Luis two
days per week on the condition that this access is under the applicant’s
supervision. Luis currently lives with his paternal grandmother. This
arrangement was agreed to by CAS since it had concerns about domestic violence
between Cheyenne and Luis’ father and her ability to care for Luis.
[13]
Naresh Jr. was born with a cocaine addiction,
has a learning disability, and has suffered from depression. He is in a special
education program. Naresh Jr. has faced criminal matters in the past. At the
time of the applicant’s scheduled removal in June 2013, he had a trial
scheduled for July 2013, but that charge was dismissed at trial. At the time of
this application, Naresh Jr. had recently been charged with robbery following
an incident at school. He was released on a Promise to Appear and the applicant
had been advised by the principal that there was not enough evidence to expel
Naresh Jr. from school, unlike the other accused students.
[14]
The applicant indicated in his TRP application
that he was working with Naresh Jr.’s teachers, medical professionals and CAS to
ensure that he had a stable, supportive environment to aid in his learning and
would receive the best care and help available. Arrangements were being made to
test him for FASD. A letter from a CAS family service worker, dated November
28, 2013, stated that Naresh Jr. should continue to reside with the applicant
in Canada since he requires additional supports at school which may not be
available in Trinidad and Tobago and he responds well to the applicant’s
parenting and his current school. The letter also stated that it would be very
difficult for Naresh Jr. to become accustomed to a new culture and new societal
norms without it having an impact on his emotional well-being. A copy of the Naresh
Jr.’s Individual Education Plan for the current school year was also submitted
to the Officer.
[15]
Cheyenne is over the age of 18, but CAS
continues to be involved in her and her son’s lives. She submitted a Statutory
Declaration in support of the TRP application noting that the applicant has
been her primary caregiver for most of her life and that she still relies on
him for moral and financial support. She also confirmed that CAS requires that
her visits with Luis involve the applicant and that in order for her to seek
full custody and access in the future; she would need her father’s help and
assistance. She stated that she would not have access to her son if the
applicant was deported.
[16]
The applicant stated in his TRP application that
he was the only person able to help and support Cheyenne, Luis, and Naresh Jr.
and that they would have nowhere to go if he is removed from Canada. They also do not wish to go with him to Trinidad and Tobago. The applicant stated that in
Trinidad and Tobago, there would be no special education programs for Naresh
Jr. and no support systems available to Cheyenne. His position is that, as
Canadian citizens, his children have a right to the care and resources
available in Canada and they would have no way of accessing those resources if
they had to go back to Trinidad and Tobago with him.
[17]
The applicant submitted a forensic psychological
report from Dr. Celeste Thirlwell, which stated that both Cheyenne and Naresh
Jr. have developmental and psychosocial issues and are particularly vulnerable
to any destabilising changes in their lives. Dr. Thirlwell found that the
applicant’s removal would seriously undermine the gains made by the children
and they would suffer “irreversible psychological and
emotional damage,” regardless of whether they stay in Canada or go with
him. She also found that the applicant has developed severe depression and
complex Post Traumatic Stress Disorder due to the cumulative effects of his
uncertain immigration statues and other legal issues. A psychological
assessment of Cheyenne by Dr. Daniel Fitzgerald was also submitted for
consideration.
III.
Impugned Decision
[18]
The TRP application was refused in a decision letter
dated January 13, 2014. The letter summarized the evidence that had been
submitted and stated that the Officer had considered the time the applicant had
spent in Canada, the effect of removing him to Trinidad, and the best interests
of his children and grandchild. The Officer concluded that these factors did
not outweigh the severity of the applicant’s criminal history in Canada.
[19]
The Officer’s notes provide a more fulsome
explanation of his reasoning. With regard to Cheyenne’s access to Luis, the
Officer found that the applicant and Cheyenne should have made alternate
arrangements through the courts to deal with the issue of his impending removal
(e.g. naming alternate parties to act as supervisor during her visits). The
Officer held that this is a serious legal matter and “should
not be used as a shield to impede immigration proceedings.” He noted
that Cheyenne is facing assault charges against Luis’ father, but she was
taking steps to correct some of her behaviours which will help her as she
raises Luis.
[20]
The Officer also considered the
psychological assessments of Cheyenne and Naresh Jr. and that the fact that they
both have FASD. He stated that “their medical
conditions are known and they appear to be on the path of dealing with this
issue” and that it was the family’s decision whether they would accompany the
applicant to Trinidad and Tobago or remain in Canada.
[21]
The Officer then found
that the applicant has a “very long and interesting criminal history in Canada”
and that he was “a “one-man crime wave,” having accrued 22 convictions in a
short period of time.” The Officer noted that the applicant spent time in
prison and held that his convictions could have resulted in up to 10 years of
imprisonment. Finally, the Officer held that the applicant had already been
given an opportunity to show that he could change his pattern of criminal
behaviour, but had violated the conditions of his stay of removal by
reoffending.
IV.
Issues
[22]
The applicant has raised a number of issues in
his application:
- Did the Officer err in failing to actually assess
the relevant TRP factors and apply the requisite test, namely whether
there are “compelling reasons” for granting
the TRP?
- Did the Officer fail to consider the best interests
of the children or fail to be at least alert, attentive and sensitive to
their interests?
- Did the Officer err by ignoring evidence,
misinterpreting evidence or making factual errors in considering the
evidence?
- Did the Officer breach procedural fairness by
failing to provide adequate reasons?
- Did the Officer breach procedural fairness by
failing to disclose the source of his assertion that the applicant
appeared to be a “one man crime wave”?
- Did the Officer breach
procedural fairness by failing to call the applicant for a personal
interview before rendering a decision?
[23]
This case turns on the Officer’ s assessment of
the best interests of the applicant’s children and the associated evidence, so
it is not necessary for the Court to consider each of the issues raised by the
applicant.
V.
Standard of Review
[24]
The Officer’s decision to issue a TRP under
subsection 24(1) of the Act is a highly discretionary one, so the
reasonableness standard of review applies (Evans v Canada (Citizenship and
Immigration), 2015 FC 259 at para 26 [Evans], Shabdeen v Canada
(Citizenship and Immigration), 2014 FC 303, 24 Imm LR (4th) 291 [Shabdeen],
Alvarez v Canada (Citizenship and Immigration), 2011 FC 667 at para 18, 203
ACWS (3d) 380 [Alvarez], Ali v Canada (Citizenship and Immigration),
2008 FC 784 at para 9, 73 Imm LR (3d) 258).
VI.
Statutory Provisions
[25]
The following provisions of the Act are
applicable in these proceedings:
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Immigration
and Refugee Protection Act, SC 2001, c 27
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Loi sur
l’immigration et la protection des réfugiés, LC 2001, ch 27
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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.
…
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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.
…
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(3) In applying
subsection (1), the officer shall act in accordance with any instructions
that the Minister may make.
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(3) L’agent est
tenu de se conformer aux instructions que le ministre peut donner pour
l’application du paragraphe (1).
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[26]
The following provisions of the Citizenship and
Immigration Canada Inland Processing Manual IP-1 [the Manual] are applicable in
these proceedings:
5.1. Purpose of temporary resident
permits
Normally, persons who do not meet the
requirements of the Immigration and Refugee Protection Act are refused
permanent resident or temporary resident visas abroad, denied entry at a port
of entry, or refused processing within Canada. However, in some cases, there
may be compelling reasons for an officer to issue a temporary resident permit
to allow a person who does not meet the requirements of the Act to enter or
remain in Canada.
…
5.9. Interviews
Officers may interview the client as part of
the enforcement, selection or counselling process. Interviews provide officers
with information regarding possible inadmissibility and violations of the Act. Officers
may also use interviews to assess credibility, confirm facts related to need
and/or risk and communicate concerns to the client.
Officers do not have to interview all
applicants for temporary resident permits. If an officer is sure the applicant
is eligible for a society, an interview may not serve any useful purpose. If
the officer is uncertain about either of the last two factors, an interview
should be held.
…
12. Procedure: Decision criteria:
Temporary entry
To determine whether favourable
consideration is warranted to overcome inadmissibility, officers must weigh the
need and risk factors in each case.
12.1. Needs assessment
An inadmissible person’s need to enter or
remain in Canada must be compelling and sufficient enough to overcome the
health or safety risks to Canadian society. The
degree of need is relative to the type of case.
The following includes points and examples
that are not exhaustive, but they illustrate the scope and spirit in
which discretion to issue a permit is to be applied.
Officers must consider:
• the factors that make the person’s
presence in Canada necessary (e.g., family ties, job qualifications,
economic contribution, temporary attendance at an event);
• the intention of the legislation (e.g.,
protecting public health or the health care system).
The assessment may involve:
• the essential purpose of the person’s
presence in Canada;
• the type/class of application and pertinent
family composition, both in the home country and in Canada;
• if medical treatment is involved, whether
or not the treatment is reasonably available in Canada or elsewhere (comments
on the relative costs/accessibility may be helpful), and anticipated
effectiveness of treatment;
• the tangible or intangible benefits
which may accrue to the person concerned and to others; and
• the identity of
the sponsor (in a foreign national case) or host or employer (in a temporary
resident case).
…
[Emphasis
added.]
VII.
Analysis
[27]
Although the Court recognizes the wide
discretion of the Officer in weighing the applicant’s criminal record with the
best interests of his children and grandchild, I nevertheless conclude that his
very brief reasons were insufficient regarding his analysis of the adverse
impact on the children resulting from the applicant’s removal to Trinidad.
[28]
In particular, I conclude that the Officer was
required to provide some explanation as to how he could conclude that the
children “appear to be on the path of dealing with this
issue,” having only specifically identified that Cheyenne and Naresh Jr.
have FASD. The Officer did not mention or deal with any of the other issues
facing these children, apart from the issue of Cheyenne’s access to Luis.
[29]
I would be prepared to overlook the applicant’s
arguments based on the forensic psychologist’s report, meaning a report
requested by a lawyer for litigation purposes, particularly since I am of the
opinion that the applicant’s forensic expert took on the role of advocating on
behalf of Naresh Jr. (see generally White Burgess Langille Inman v Abbott
and Haliburton Co., 2015 SCC 23 at para 49: “… an
expert who, in his or her proposed evidence or otherwise, assumes the role of
an advocate for a party is clearly unwilling and/or unable to carry out the
primary duty to the court.” ).
[30]
Moreover, as I have previously commented at
paragraphs 37 to 42 of Czesak v Canada (Citizenship and Immigration),
2013 FC 1149, 235 ACWS (3d) 1054 circumspection is required when weighing the
probative value of forensic expert reports. Trial courts and those required to
assess the probative value of opinions of experts retained by counsel have recognized
the potential for erroneous decisions unless the reliability of the opinions
has been subjected to extensive adversarial challenge and supported by
underlying neutral third-party documentation.
[31]
These comments aside, the Court’s principal
concern in this case relates to the Officer’s failure to comment on the issues
raised by the CAS letter signed by the Family Service Worker Ms. Andrea Torchia
and her supervisor, Ms. Christine Reposo. That letter stressed the importance
of the applicant’s role in Naresh Jr.’s progress to overcome his psychological
challenges, concluding that he will “most likely
require ongoing supports from community services and his father, Mr. Ramnanan,
throughout his teenage years and into adulthood.” CAS employees are
specialists in identifying children at risk and assisting them through various
programs and by facilitating recourse to relevant experts. Their opinions, in
the form of assessments and recommendations for interventions, are tested on a
daily basis in the courts.
[32]
The Officer is presumed
to have considered all the evidence before him and this presumption will only
be rebutted where the evidence not discussed has high probative value and
relates to a core issue of the claim (Florea v Canada (Minister of Employment and Immigration), [1993] FCJ
No 598 (QL) (FCA), Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35 at paras 16-17, 83 ACWS (3d) 264 (FC)).
[33]
Nevertheless, given the expertise of CAS
employees in identifying and addressing children’s needs and the independent
nature of this evidence, its opinion on the best interests of a child has a presumptively
high probative value. Therefore, I find that it was not reasonable for the
Officer to fail to discuss this evidence, particularly the role of the
applicant in the child’s improving situation.
VIII.
Conclusion
[34]
In conclusion, I find that the Officer’s reasons
lack transparency in stating only that the applicant’s children appear to be on
the path of dealing with their issues, without any indication that he was alert
to the applicant’s apparent significant role in their improving circumstances
as indicated by independent expert evidence. This oversight constitutes a
reviewable error requiring the Court’s intervention, such that the application
must be allowed and the matter returned to be heard by another officer.
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