Date: 20030605
Docket: IMM-2208-02
Citation: 2003 FCT 710
OTTAWA, ONTARIO, this 5th day of June 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
WAI YUEN JACKY CHEUNG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
INTRODUCTION
[1] This is an application for judicial review of a decision of the delegated manager of Citizenship and Immigration Canada ("CIC") dated May 1, 2002, denying the Applicant's application for criminal rehabilitation.
FACTS
[2] The Applicant is a citizen of Hong Kong and China and is trained as a hair stylist. In June, 1994, the Applicant pled guilty in Hong Kong to charges of possession of counterfeit notes and possession of marijuana. He was fined HK$1500 (approximately C$305) and HK$500 (approximately C$101) respectively. The Applicant immediately paid his fines and did not serve any jail time in connection with these convictions. He has not been convicted of any criminal offences since June, 1994.
[3] The Applicant claims his hair styling business in Hong Kong was successful and, after closing it in 1998, he was able to invest in a real estate development company in Canada. The Applicant first travelled to Canada in 1995 or 1996 and made 4 to 6 trips between that time and 2002. On May 1, 2000, the Applicant was denied entry into Canada by a Port of Entry Officer because the Officer was not satisfied the Applicant was a genuine visitor. The Officer's notes indicate the Applicant admitted to lying about his employment situation to be admitted to Canada. Initially the Applicant indicated that he was working as a garment salesman, but later admitted that he had been unemployed since 1998. The Applicant also admitted that he had worked for a salon operated by his friend in Edmonton on previous visits to Canada. The Applicant was turned back by the Officer and returned to Hong Kong.
[4] The Applicant returned to Canada and was permitted entry on May 24, 2000 after posting a bond of C$4000. As a condition of entry, he was required to leave Canada before July 23, 2000 and confirm his departure with CIC. The Visitor Record remarks indicate the Officer found the Applicant to be evasive and dishonest unless confronted by contradictory information.
[5] During his visit to Canada, the Applicant married a Canadian citizen, Ms. Sze Man Shirley Fock of Edmonton, Alberta, on June 22, 2000. The Applicant returned to Hong Kong in July 2000 when his visitor's visa expired. Ms. Fock submitted a sponsorship application to CIC and the Applicant applied for an exemption from the immigrant visa requirement on humanitarian and compassionate grounds ("H & C application"). The H & C application was approved on December 17, 2001; however, on the same day the couple's application for permanent residence was refused as a result of the Applicant's prior criminal convictions.
[6] CIC advised the Applicant that he could apply for criminal rehabilitation. The Applicant filed an application for rehabilitation on December 15, 2001 and was interviewed by a Senior Immigration Officer (the "SIO") on January 23, 2002. On May 1, 2002, the SIO recommended to the manager that the application be refused. The recommendation was accepted and the Applicant was instructed in a letter dated May 1, 2002 to depart Canada by May 31, 2002. The Applicant filed for judicial review on May 15, 2002 and requested written reasons for the decision.
[7] Reasons were provided on July 4, 2002 in the form of the SIO's case summary notes. In his notes, the SIO recounted the interview and noted some inconsistencies in the Applicant's answers. In particular, the SIO noted the Applicant maintained that he had never worked in Canada and had not provided false information to the Port of Entry Officer. The SIO concluded at page 3:
In light of the above provided information, I do not recommend approval of rehabilitation. Applicant's statements give the impression that he is remorseful and that he accepts responsibility for his actions, however I am not satisfied that he is being sincere.
It appears that applicant's statements are for self-serving reasons (i.e. to remain in Canada), and that their content is designed to attempt to convince the writer that applicant has been rehabilitated.
The writer acknowledges that it was previously determined that sufficient humanitarian and compassionate factors existed to allow the applicant to remain in Canada. The writer also acknowledges that the convictions are not of a multiple or serious nature. Notwithstanding these acknowledgements, the writer notes that applicant continues to mislead and provide false information to Immigration Officials and that his actions demonstrate a lack of respect for the spirit and intent of the Immigration Act and Regulations and for the laws of Canada.
[8] The Applicant now seeks an order quashing the decision to refuse the application for rehabilitation and an order remitting the matter back for a redetermination by a different SIO.
ISSUES
1. What is the appropriate standard of review?
2. Did the delegated manager of CIC commit a reviewable error by refusing the Applicant's application for criminal rehabilitation?
RELEVANT LEGISLATION
[9] The relevant statutory provision is paragraph 19(1)(c.1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). Prior to its repeal on June 28, 2002, paragraph 19(1)(c.1) stated:
| Inadmissible persons 19. (1) No person shall be granted admission who is a member of any of the following classes: (c.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or
except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be; |
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Personnes non admissibles 19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_: c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger_:
(i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction, |
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[10] As all relevant decisions in this case were made prior to June 28, 2002, the provisions of the former Act govern this application.
ANALYSIS
[11] Various issues were raised in the written materials concerning the form of affidavit sworn by the Applicant and whether the Respondent had breached the duty of fairness by not providing reasons for the decision in writing. I do not feel that these issues need to be considered in detail because I do not find either party was materially prejudiced in presenting their case and, at the hearing, quite correctly focussed upon the real substantive issues.
What is the appropriate standard of review?
[12] The Applicant submits that the appropriate standard of review for decisions regarding criminal rehabilitation is reasonableness simpliciter. In support of his position, the Applicant relies upon the following statement from McKeown J. in Thamber v. Canada (Minister of Citizenship and Immigration), [2001] FCJ No. 332 at paragraph 9:
In light of the Supreme Court of Canada's decision in Baker v. M.C.I., [1999] 2 S.C.R. 817 (S.C.C), I am satisfied that the standard of review of an immigration officer's decision on criminal rehabilitation is that of reasonableness simpliciter. The impugned decision-making process is similar to that of an H & C application made pursuant to subsection 114(2) of the Act.
[13] The Respondent contends the appropriate standard of review should be patent unreasonableness. It is the Respondent's position that there are important differences between a criminal rehabilitation decision and a decision on an H & C application. Notably, a criminal rehabilitation application involves a "polycentric" issue and requires the balancing of the interests of various constituencies. Implicit in an examination of whether an Applicant has been rehabilitated is the duty to protect the public in Canada from criminals who may be attempting to gain admission. Therefore, the decision in cases of this kind is more analogous to decisions in cases involving danger opinions for which the appropriate standard of review is patent unreasonableness as set out in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraphs. 31 and 32.
[14] The Respondent's submission does not appear to have been addressed directly by the Court. In addition to Thamber, supra, this Court has on at least two other occasions explicitly identified reasonableness simpliciter as the applicable standard in cases involving an application for rehabilitation. In Lo v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1155, Beaudry J. cited with approval paragraph 9 from Thamber, supra, and applied reasonableness simpliciter as the appropriate standard. And Kelen J. in Ho v. Canada (Minister of Citizenship and Immigration), 2002 FCT 376 also identified reasonableness simpliciter as the applicable standard of review based on Baker, supra. However, the decision in Thamber , supra, pre-dates Suresh, supra, and it does not appear that the applicability of Suresh, supra, was raised in either Lo, or Ho, supra.
[15] Practically speaking, for the reasons that follow the applicable standard does not need to be definitively decided in this case because I find there is no reviewable error irrespective of which standard is applied.
Did the delegated manager of CIC commit a reviewable error by refusing the Applicant's application for criminal rehabilitation?
[16] Other than paragraph 19(1)(c.1), the Act provides no guidance on how rehabilitation is to be assessed. Chapter 11 of CIC's Inland Processing Manual (the "IP Manual") outlines some guidelines that immigration officials can follow when making decisions on criminal rehabilitation applications. Section 1.3 states that an officer "must be satisfied that it is highly unlikely the person will be involved in any further criminal activities." Section 4.3 sets out a list of rehabilitation considerations. The following are relevant to this case:
· acceptance of responsibility for the offence;
· evidence of remorse for the victim(s) and restitution where possible;
· evidence of change in lifestyle e.g. participation in educational and training programs may indicate a willingness to change; and
· evidence of stability in employment or family life.
[17] The Applicant submits the decision was unreasonable in light of all of the circumstances of the case and points out that, as he has been crime-free since 1994 and has been leading a stable lifestyle, there is a better than average chance he will successfully resettle without committing any offences in the future. Moreover, he contends the SIO's fixation on whether he worked while visiting Canada in the past was extraneous to the issue of criminal rehabilitation.
[18] The Respondent argues this case boils down to credibility. The Applicant's crime-free years are outweighed by his dishonesty with CIC officials and his inconsistent and evasive answers to the SIO's questions.
[19] This is one of those cases where, had the Applicant been a little more careful and forthright with his answers, the likelihood is that the SIO would not have concluded the way he did. The Applicant was cavalier in his approach to the Immigration rules and he has paid the price. Taking into account the H & C considerations, the Applicant's obviously stable relationship with his partner, Ms. Sze man Shirley Fock, the nature of the actual convictions and the length of time that has gone by without any apparent recurrence of criminal activity, I cannot myself believe that there is a serious likelihood that he will become involved in future criminal acts. But the fact that I would have come to a different conclusion from the SIO or the Manager does not make their decision, wrong, unreasonable or reviewable. The situation is most unfortunate, but it is one that the Applicant has brought on himself. There are three reasons for this conclusion.
[20] First, the SIO did not rely upon an irrelevant consideration by considering the Applicant's past dealings with CIC. While it is not a factor enumerated in Section 4.3, this does not mean that the SIO could not take it into account. Section 4.3 is only a guideline and the list of factors enumerated there is not exhaustive. When evaluating whether the Applicant was likely to commit a criminal offence in Canada in the future, it was reasonable for the SIO to draw a negative inference from his past disrespect for Canada's immigration laws and his provision of false information to CIC.
[21] Second, there is no reason to interfere with the SIO's conclusion that the Applicant had not sincerely accepted responsibility for his actions. Assessing whether an Applicant has accepted responsibility is largely a matter of credibility and the SIO acted reasonably in negatively assessing the Applicant's credibility. In his case summary notes, the SIO indicated the Applicant's answers were vague. The notes also show the SIO went over some subject areas a second time when he was not satisfied with the Applicant's initial responses, but still received unsatisfactory answers. Moreover, the notes show the Applicant refused to take responsibility for his past violations of Canada's immigration laws, claiming that he had not worked while in Canada but he had merely assisted or helped out his friend. All of this provides strong support for the SIO's finding.
[22] Third, the SIO took into consideration the relevant humanitarian and compassionate considerations in this case and came to a reasonable conclusion. The Applicant argues this case is similar to Dee v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 345 (T.D.), where the Court found the applicant was "a minimal risk" based largely on the seventeen crime-free years in Canada. However, it is difficult to draw a parallel with Dee, supra, due to the peculiar facts of that case. The situation in Dee, supra, was complicated by a denial of natural justice and procedural fairness, as well as the Minister's failure to comply with an earlier Court order. The case of Thamber, supra, is much closer to the facts of the case at bar. In Thamber, supra, McKeown J. found the officer erred by referring to evidence of stability in employment and family life as not important determining factors, and by disregarding the applicant's ten crime-free years. That being said, the case at bar is distinguishable from Thamber, supra. The SIO did not ignore these important considerations. In his case summary notes, he acknowledged the existence of humanitarian and compassionate factors favouring the Applicant and that his convictions were "not of a multiple or serious nature."
[23] It is also important to distinguish the case at bar from Malicia v. Canada (Minister of Citizenship and Immigration), 2003 FCT 170. In Malicia, supra, Snider J. was not convinced that an officer assessing a criminal rehabilitation application had considered all of the relevant evidence. She went on to state that an 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." At first glance it appears the same could be said of the case at bar. Nowhere in the case summary notes did the SIO discuss the details of the humanitarian and compassionate factors favouring the Applicant. However, only seven months earlier on June 27, 2001, the same SIO reviewed those factors during an interview conducted for the Applicant's H & C application, an application which was subsequently approved.
[24] Accordingly, it appears the SIO was familiar with and took into consideration the humanitarian and compassionate aspects of this case. Despite the presence of those factors, he decided that they were outweighed by the Applicant's lack of respect for Canada's immigration laws, a factor which was not present in the cases of Dee, Thamber or Malicia, supra. In essence, the Applicant is asking the Court to re-weigh the factors considered by the SIO. While there are compelling reasons in this case favouring the Applicant's admission, based on the Applicant's repeated deception of CIC and his failure to accept responsibility for his actions, it was not unreasonable for the SIO to conclude the Applicant had not been rehabilitated. Regardless of whether the appropriate standard of review is reasonableness simpliciter or patent unreasonableness, it is not the function of this Court to re-weigh the factors or interfere merely because it would have come to a different conclusion. See Suresh, supra, at paragraphs 26 and 41.
[25] For the reasons set out above, the application for judicial review is dismissed.
[26] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2208-02
STYLE OF CAUSE: Wai Yuen Jacky Cheung v. The Minister of Citizenship
and Immigration
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: May 5, 2003
DATED: June 5, 2003
APPEARANCES:
Mr. Edwin Bridges FOR APPLICANT
Ms. Tracy King FOR RESPONDENT
SOLICITORS OF RECORD:
Snyder & Associates FOR APPLICANT
Edmonton, Alberta
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada