Date: 20030214
Docket: IMM-824-02
Neutral citation: 2003 FCT 170
Ottawa, Ontario, this 14th day of February, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
CARLOS MANUEL MALICIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Citizenship and Immigration Officer ("Immigration Officer") dated February 6, 2002 and communicated to the applicant on or about February 8, 2002, wherein the Immigration Officer determined that there were insufficient humanitarian and compassionate grounds ("H & C") to allow Carlos Manual Malicia's (the "Applicant") application for permanent residence to be processed from within Canada.
Facts
[2] The Applicant emigrated to Canada in April 1975 with his family and was granted permanent resident status at that time. Due to substantial criminal activity over a lengthy period of time and his failure to attend an inquiry in February 1992, the Applicant was ordered deported on June 7, 1994.
[3] The Applicant has applied for H & C consideration as per section 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 whereby the Minister may exempt any person from the regulations of subsection (1) or facilitate the admission of any person owing to the existence of compassionate or humanitarian considerations. Specifically, the Applicant applied to have subsection 9(1) waived. Subsection 9 (1) requires that all immigrants apply and obtain an immigration visa prior to coming Canada.
[4] The Immigration Officer decided that an exemption of subsection 9(1) would not be granted.
The Immigration Officer's Decision
[5] In reaching her decision, the Immigration Officer had substantial material before her including numerous letters from family and friends and a report of a psychologist.
[6] By letter dated November 27, 2001, the Immigration Officer requested that the Applicant provide further information, including a request to provide a letter from both Alcoholics Anonymous and Narcotics Anonymous, to substantiate his statement. In that letter, the Immigration Officer also asked the following question:
Other than having no convictions since 1997, in what other way can you demonstrate that you have rehabilitated yourself?
Further, the Immigration Officer asked whether the Applicant had any other charges or arrests since 1997.
[7] Information that, was at least partially responsive to this request, was forwarded to the Immigration Officer. Through no fault of the Respondent, the information did not reach the Immigration Officer. Accordingly, her decision was made on the basis of the information before her.
[8] The Immigration Officer decided that there were insufficient grounds to grant a waiver of the subsection 9(1) requirements.
[9] The Immigration Officer noted that the Applicant had been in Canada for most of his life with his entire family, that there was no remaining family in Portugal and that leaving his family would not be easy on him or his family. She, nevertheless, found that she "was not satisfied that it constitutes undue or disproportionate hardship."
[10] She found that:
The subject has an arrest record that dates back to 1983. He has been charged with over 45 offences; he has been convicted 21 times. Considering the subject's extensive criminal history, I am not satisfied that being "conviction free" since 1997 is necessarily indicative of rehabilitation nor am I satisfied that the passage of time constitutes rehabilitation.
[11] Finally, she decided that:
I have carefully considered the impact this decision will have on the subject and his family. I have read their letters of support and pleas to give the subject a second chance. I can sympathize with the distress the subject's family has expressed over the thought of him returning to Portugal. No doubt, they will be disappointed should he be ultimately removed to Portugal. While there are compelling humanitarian and compassionate factors, I am not satisfied that they are sufficient to overcome the negative factors in this case. The subject has made declarations about himself and his rehabilitation however, he has not provided sufficient evidence to support his assertions.
Arguments
(a) Applicant's Submissions
[12] The Applicant raised, in his written submissions, the issue of whether the Immigration Officer ought to have taken into account the information that was forwarded by the Applicant but not received; however during oral submissions, the Applicant acknowledged that he would not pursue that argument further.
[13] The Applicant submitted that there was compelling evidence before the Immigration Officer that the Applicant was rehabilitated. Such evidence was contained in the letters provided by family and friends. There was also reference to rehabilitation in the psychologist's report. The compelling evidence also included the lack of a criminal record for over four years.
[14] In her reasons, the Immigration Officer failed to explain why she concluded that the "compelling humanitarian and compassionate factors" were "not sufficient to overcome the negative factors".
(b) The Respondent's Submissions
[15] The Respondent submitted that the Immigration Officer's decision is not unreasonable and not in error and that the Applicant is merely seeking for the Court to re-weigh the evidence. The onus is on the Applicant to satisfy the Immigration Officer that there are sufficient humanitarian and compassionate grounds to warrant a favourable recommendation. The Applicant must fully present his case with supporting documentation to the Immigration Officer. The Applicant's failure to do so does not create an error.
[16] There is no need for the Immigration Officer to mention or refer to all evidence in her reasons. It is submitted that the record contradicts the Applicant's arguments that the Immigration Officer did not consider the issue of rehabilitation. She was seeking further evidence and it was not provided to her.
[17] In the Respondent's submission, the Immigration Officer noted all of the factors that weighed in favour of finding humanitarian and compassionate consideration in this case. She balanced that against his extensive criminal history and found that there were not sufficient humanitarian and compassionate reasons to grant the exemption.
Analysis
[18] For the reasons that follow, I am of the view that this application should be allowed.
[19] The issue in this case is related to the Immigration Officer's view of the extent of rehabilitation. It is clear, from her decision, that she had no doubt about the "compelling humanitarian and compassionate factors" that weighed in favour of the Applicant. In her decision she carries on to state that:
I am not satisfied that they are sufficient to overcome the negative factors in this case. The subject has made declarations about himself and his rehabilitation, however, he has not provided sufficient evidence to support his assertions.
Thus, the issue of rehabilitation was determinative in the mind of the Immigration Officer.
[20] With respect to rehabilitation, even without the information sought by the Immigration Officer, there was substantial evidence before her. The letters of relatives and friends, in addition to being "letters of support and pleas to give the subject a second chance", contain significant information related to their view of the Applicant's rehabilitation. One of the letters was from an acquaintance at Alcoholics Anonymous. The psychologist's report also spoke to the Applicant's rehabilitation. Nowhere in the decision was there a specific reference to this important evidence.
[21] In the decision, the only reference to the rehabilitation evidence before her is the following statement "furthermore, other than remaining without conviction since 1997, he has not sufficiently demonstrated that he has rehabilitated himself". On a simple reading, this statement makes it obvious that the Immigration Officer failed to consider any other evidence related to the issue of rehabilitation. She could have made reference to the various assertions of the Applicant's rehabilitation contained in the letters and psychologist's report and dismissed them. She did not do so.
[22] It seems to me that the Immigration Officer is required to go beyond a simple acknowledgement of having reviewed all of the evidence where the information relates to a determinative issue in the Applicant's claim. In this view, I am supported by various decisions of the Court (see, for example, Khan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 332 (T.D.) (QL); Tse v. Canada (Minister of Citizenship and Immigration), [1995 F.C.J. No. 633 (T.D.)).
[23] This is not simply a matter of the weight that the Immigration Officer put on this factor; it is a demonstration that the Immigration Officer failed to consider the evidence that was before her. In my view, this is a reviewable error.
[24] Accordingly, I am of the view that this application should be allowed.
ORDER
THIS COURT ORDERS THAT this application is allowed. The case raises no serious question of general importance.
"Judith A. Snider"
JUDGE
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-824-02
STYLE OF CAUSE: CARLOS MANUEL MALICIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, FEBRUARY 6, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: FRIDAY, FEBRUARY 14, 2003
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD:Lorne Waldman
Barrister & Solicitor
281 Eglinton Avenue East
Toronto, Ontario
M49 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 200302XX
Docket: IMM-824-02
BETWEEN:
CARLOS MANUEL MALICIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER