Docket: IMM-515-17
Citation: 2017 FC 922
[ENGLISH TRANSLATION]
Montréal, Quebec, October 17, 2017
PRESENT: The Honourable Mr. Justice Shore
| BETWEEN
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| ORTIZ RODRIGUEZ, HAROLD
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| Applicant
|
| and
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| THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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| Respondent
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JUDGMENT AND REASONS
(Delivered from the bench)
I.
Preface
[1]
The officer exercised her discretionary power by deciding to give significant weight to the factors arguing against the applicant’s rehabilitation (namely the applicant’s failure to disclose his criminal history to the Canadian authorities). However, the Court does not consider that the officer took adequate account of all the evidence, or that she justified her decision in a specific way, for reasons that led her to conclude that the applicant posed a risk of recidivism in Canada. The officer had to justify her refusal briefly or succinctly, given that the applicant has already been recognized as being rehabilitated by Canada for the one crime that he committed in the United States.
II.
Nature of the matter
[2]
This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA], regarding the decision made on January 20, 2017, by an immigration officer of Citizenship and Immigration Canada [officer], in which she sets out the reasons that she does not believe the applicant is rehabilitated. On January 26, 2017, another immigration officer denied the applicant’s application for rehabilitation on the grounds that he is inadmissible to Canada for serious criminality, in accordance with paragraph 36(1)(b) of the IRPA.
III.
Facts
[3]
The applicant, age 64, is a Colombian citizen.
[4]
The applicant has been married since 1997 and he has two daughters.
[5]
In August 1989, the applicant, a painter, claimed that he travelled to Miami to attend an exhibition of his work. However, on January 16, 1990, he was arrested for possession of cocaine for the purposes of trafficking and was sentenced to 70 months of prison and 5 years of probation.
[6]
The applicant claims that he was urged by a Colombian paramilitary group (also known as Nutibara) to transport some drugs to the United States, with the promise that the group members would sell the applicant’s paintings in Miami to make him rich.
[7]
After serving his sentence, the applicant was deported to Colombia by US authorities in October 1994. From October 1994 to June 2006, the applicant lived in Colombia.
[8]
In the meantime, on December 12, 2002, the applicant was arrested again for possession of cocaine. Once again, the applicant claimed that the paramilitary group Nutibara forced him to smuggle drugs at the Bogota airport.
[9]
On March 10, 2003, the applicant was sentenced to 48 months of imprisonment. On August 10, 2004, he was released with a probation order until March 2006.
[10]
In 2006, the applicant submitted a visitor’s visa application to Canada, which was accepted. However, the applicant failed to mention his criminal convictions in the United States and Colombia.
[11]
On June 10, 2006, the applicant entered Canada. One month later, his spouse and children, who were all Colombian citizens, followed him.
[12]
On August 4, 2006, the applicant submitted a refugee claim to Canada. In his personal information form, the applicant once again chose to not disclose his criminal record in the United States and Colombia to Canadian authorities. On July 2007, his refugee claim was denied. On September 23, 2009, the Federal Court also dismissed the application for judicial review.
[13]
On July 20, 2010, the applicant submitted a permanent residence application on humanitarian and compassionate grounds [HC application]. On January 8, 2013, his HC application was approved, noting, however, that the applicant did not mention his criminal conviction in Colombia.
[14]
First, a removal order was issued against the applicant and his spouse. On December 19, 2011, a deportation order was issued and the Immigration Division found that the applicant was inadmissible to Canada under paragraph 36(1)(b) of the IRPA.
[15]
On March 2, 2011, the applicant submitted a first application for rehabilitation for the crime he committed in the United States in 1990 (failing to reveal to Canadian authorities the crime committed in Colombia). On September 18, 2012, his application for rehabilitation was approved.
[16]
It was only when the Canadian government learned of the crime committed in Colombia through fingerprints that the applicant submitted a second application for rehabilitation on August 12, 2014, this time for the crime that he committed in Colombia.
[17]
Today, the applicant has been working for the Salvation Army since February 2007 in two departments: Direct Family Services and Emergency Disaster Services. He has two private companies, is involved in the community and lives in a house in Canada with his spouse and their two children.
IV.
Decision
[18]
On January 20, 2017, the officer found that the applicant did not represent a low risk of recidivism and that, in her opinion, there was a chance that the applicant would adopt further behaviour similar to that during the events that occurred in 1990 and 2001.
[19]
The following factors were listed in favour of the applicant’s rehabilitation:
-
He acknowledges his crimes and feels remorse;
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He is involved in the community, owns a house and has stable employment;
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He has not committed any crimes since his arrival in Canada, and his last criminal conviction was 14 years ago;
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He has a family in Canada, a minor child and two children who have adapted very well to the community.
[20]
The following factors were listed as not being in favour of the applicant’s rehabilitation:
-
Although 12 years passed between the first and second offence, the fact remains that they were committed for the same reasons;
-
He failed to declare his criminal history to Canadian authorities on numerous occasions.
[21]
On January 26, 2017, the officer denied the applicant’s application for rehabilitation under paragraph 36(3)(c) of the IRPA, following the reasons issued by another officer designated to review the case. The applicant was declared inadmissible to Canada because, according to the officer, he is a person described in paragraph 36(1)(b) of the IRPA.
[22]
It is the decision of January 20, 2017, that is the subject of this application for judicial review.
V.
Issue
[23]
The Court considers that only one issue is important: Is the officer’s decision that the applicant is not rehabilitated reasonable, given all the evidence?
[24]
The parties agree that the standard of review that applies to an officer for rehabilitation is reasonableness (Lau v Canada (Citizenship and Immigration), 2016 FC 1184 at para 20; Hadad v Canada (Citizenship, Immigration and Multiculturalism), 2011 FC 1503 at para 40; Thamber v Canada (Minister of Citizenship and Immigration), 2001 FCT 177 at para 9 [Thamber]). The Court recalls that deference must be shown regarding decisions made by immigration officers, who have expertise and experience in criminal rehabilitation (Dunsmuir v New Brunswick, 2008 SCC 9 at para 49 [Dunsmuir]).
VI.
Relevant provisions
[25]
The following provisions of the IRPA are relevant:
| 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
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36 (1) Emportent interdiction de territoire pour grande criminalité les faits suivants :
|
| […]
|
…
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| (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; or
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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;
|
| […]
|
…
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| 36 (3) The following provisions govern subsections (1) and (2):
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36 (3) Les dispositions suivantes régissent l’application des paragraphes (1) et (2) :
|
| […]
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…
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| (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated;
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c) les faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui, à l’expiration du délai réglementaire, convainc le ministre de sa réadaptation ou qui appartient à une catégorie réglementaire de personnes présumées réadaptées;
|
VII.
Submissions by the parties
A.
Applicant’s arguments
[26]
The applicant claims that the officer made an erroneous finding of fact because she allegedly failed to take the evidence as a whole into account. The applicant explains that in 2012, Canada recognized that the applicant was rehabilitated for the crime that he committed in the United States. The applicant also explains that the officer drew a negative inference about the possibility of recidivism in Canada by limiting herself mainly to the applicant’s failures to disclose his criminal history. On this matter, he cites Kok v Canada (Minister of Citizenship and Immigration), 2005 FC 77 at para 47 [Kok], in which it was decided that the factors in the applicant’s favour ought to have been given more weight than the applicant’s credibility with respect to rehabilitation.
[27]
Since the applicant is presumed to be rehabilitated after ten years under subsection 18(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], the applicant considers that it was up to the officer to rebut that presumption. He refers this Court to Gonzalez Aviles v Canada (Minister of Citizenship and Immigration), 2005 FC 1369 at para 18 [Gonzalez Aviles], to insist that the officer had to examine the entirety of the applicant’s situation, which would allow for said presumption to be rebutted.
[28]
The applicant considers that the officer should have prevented him from arguing a defence of compulsion, provided for in section 17 of the Criminal Code, RSC (1985), c. C-46, for a similar crime committed abroad. Since defence of compulsion did not exist in Colombia at the time when the applicant committed the crime, then he would have been acquitted of that same crime in Canada.
[29]
The applicant adds that the officer should have addressed the issue of compassionate and humanitarian considerations as part of his application for rehabilitation. More specifically, the officer should have taken into account the best interest of the two children involved in the case. The applicant cites Khatoon v Canada (Citizenship and Immigration), 2008 FC 276 at para 7.
[30]
Finally, the applicant claims that the officer did not follow the directives of the Evaluating Inadmissibility policy (ENF 2/OP 18), since “[the officer] must be satisfied that it is highly unlikely that the person concerned will become involved in any further criminal activities”
.
B.
Respondent’s arguments
[31]
The respondent maintains that the officer made a reasonable decision. The officer considered the positive and negative factors in the application for rehabilitation; however, she made a negative conclusion by giving more probative value to the factors against granting the applicant’s rehabilitation.
[32]
In the same vein, the respondent submits that the deciding officer has considerable discretion in determining the applicant’s risk of recidivism, which must be minimal (Thamber, supra, at para 16). The respondent explains that it was reasonable for the officer to draw a negative conclusion by considering the applicant’s failure to comply with Canadian immigration laws. This is a relevant element in an application for rehabilitation (Cheung v Canada (Minister of Citizenship and Immigration), 2003 FCT 710 at para 20).
[33]
The respondent also considers that the applicant was required to respond truthfully to Canadian authorities in any application submitted under subsection 16(1) of the IRPA. It is important to not omit information and elements that are relevant to the applicant’s case (Sinani v Canada (Citizenship and Immigration), 2017 FC 106 at para 16; Kazzi v Canada (Citizenship and Immigration), 2017 FC 153 at para 26).
[34]
Furthermore, the respondent argues that the applicant does not take any responsibility for his false statements, as the evidence reveals that the applicant often tends to blame others for his failures, e.g. his former counsel. Such an allegation against the applicant’s former counsel involves the Procedural Protocol Re: Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court, dated March 7, 2014. It was up to the applicant to make the appropriate statements and to sign the required documents, despite the instructions by his counsel.
[35]
The respondent argues that it was completely unjustified for the applicant to not disclose his criminal convictions to Canadian authorities (especially since it involves the same type of crime) on the grounds that he is presumed to be part of the category of rehabilitated persons, in accordance with subsection 18(2) of the IRPR. The respondent adds that the applicant’s behaviour of lying to Canadian authorities many times is not the behaviour of someone who says that he is rehabilitated and who says that he admits his responsibility for his criminal past.
[36]
Contrary to the applicant’s allegations, the respondent considers that the officer did not have to review the judgment made by the Colombian authorities in order to assess the defence of compulsion, among other things, since the crime committed by the applicant in the United States was directly related and was the very same crime committed in Colombia, that of smuggling drugs into the United States. Indeed, the officer, knowing that the applicant was already found guilty for the crime he committed in the United States, did not have to re-do the applicant’s process in order to assess a defence that was not argued before the Colombian courts.
VIII.
Analysis
[37]
For the following reasons, this application for judicial review is allowed.
A.
Is the officer’s decision reasonable?
[38]
The officer decided to not recognize the applicant as being rehabilitated under paragraph 36(3)(c) of the IRPA, because he is inadmissible to Canada under subsection 36(1) of the IRPA. In Gonzalez Aviles, Paul Rouleau J. indicates that “[t]this provision is to allow the Minister to take into consideration the unique facts of each particular case and to consider whether the overall situation warrants a finding that the individual has been rehabilitated”
(para 18).
[39]
As part of the application for rehabilitation, the Court will therefore need to determine whether the officer’s decision is reasonable, given all the evidence.
[40]
The applicant submitted an application for rehabilitation for the crime he committed in Colombia, after having been rehabilitated for that same crime that was committed in the United States.
[41]
The officer exercised her discretionary power by deciding to give significant weight to the factors arguing against the applicant’s rehabilitation (namely the applicant’s failure to disclose his criminal history to the Canadian authorities). However, the Court does not consider that the officer took adequate account of all the evidence, or that she justified her decision in a specific way, for reasons that led her to conclude that the applicant posed a risk of recidivism in Canada. The officer had to justify her refusal briefly or succinctly, given that the applicant has already been recognized as being rehabilitated by Canada for the one crime that he committed in the United States.
[42]
The Court reiterates that it cannot intervene in this application if it is to make a different finding (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59). As part of her mandate, it is up to the officer to consider all the evidence regarding rehabilitation and to justify that in her reasons, even briefly or succintly, but ensuring that the analysis is complete. The officer gave significant probative value to similar crimes committed by the applicant, in the United States and Colombia, without adequately considering, however, all the documents that specified the relevant information concerning the applicant’s rehabilitation. The officer must ensure that the rehabilitation specified for the applicant was considered before concluding with a negative decision.
[43]
Consequently, the applicant had to know the reasons that led the officer to draw a negative conclusion. Since this was a crucial element for the applicant in his application for rehabilitation, this point should have been referred to explicitly by the officer in her decision to deny that the applicant was rehabilitated (Kok, supra, at para 51).
[44]
For these reasons, the Court is not convinced that the officer’s decision is reasonable. The officer’s decision is one of the “range of possible, acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir, supra, at para 47).
IX.
Conclusion
[45]
This application for judicial review is allowed.
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