Date: 20010312
Docket: IMM-2407-00
Neutral Citation: 2001 FCT177
BETWEEN:
AVTAR SINGH THAMBER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicant seeks judicial review of the Minister's April 13, 2000 decision denying the Applicant's application for criminal rehabilitation, made pursuant to section 19(1)(c.1) of the Immigration Act, R.S.C. 1985, c.I-2 (the "Act").
[2] The issues are: (1) What is the appropriate standard of review?; (2) Does the immigration officer have to provide the Applicant with reasons for his decision?; (3) Do the immigration officer's notes constitute reasons?; and (4) Was the decision that the Applicant had not been criminally rehabilitated unreasonable, based on the totality of the evidence?
FACTS
[3] In early 1990, the Applicant was sentenced by the Regional Court for Criminal Matters in Vienna, Austria to 8 months imprisonment for a 1988 drug trafficking offence. The Applicant was held for 4 months and was then conditionally released on April 17, 1989 and deported to India.
[4] The immigration officer had a report from Interpol Vienna which stated in part:
Sentenced on 2.3.90 by Regional Court for Criminal Matters Vienna, case #6e Vr. 1031/89, to 8 months of imprisonment for violation of drug law. Sentence has become final. He was conditionally released on 17.4.89 for a probation period of 3 years. SINGH Avtar is not wanted, but is subject of a banishment order for Austria.
...
...Criminal record will under Austrian law be destroyed as a rule 5 years after the latest conviction, and must not be taken into consideration thereafter.
[5] The Applicant arrived in Canada in 1991 and, in the following year, he was found to be a Convention Refugee. He applied for permanent residence but his application has not yet been processed. The Applicant submitted his application for approval of rehabilitation in May of 1997.
[6] At that time, according to his affidavit statement at pages 13-16 of the Application Record, the Applicant thought he had been convicted while he was still in Austria. However, on July 18, 1997, the Applicant received a certificate from the Federal Police Directorate of Vienna Criminal Records stating that, "[n]o entry appears in the criminal records of the Federal Police Directorate of Vienna." After he received this information from the Austrian authorities, he submitted another statutory declaration (found at pages 16 to 18 of the Application Record) which stated only that he had been charged with the subject offence.
[7] On August 7, 1998 the immigration officer advised the Applicant by letter that he was not prepared to submit his application for rehabilitation to the Minister. The officer swore an affidavit on April 22, 1999, in which he stated at paragraph 10 that:
In view of the fact that (a) the Applicant has never really admitted that he was convicted of the offense for which he has submitted an application for approval of rehabilitation nor did he express remorse and (b) he failed to provide the mandatory supporting documentation, the conviction certificate of his offense or an explanation for why this could not be obtained, I came to the conclusion that the Applicant's application for approval of rehabilitation did not warrant being recommended to the Minister.
[8] On June 21, 1999, Monique Landry, the new immigration officer assigned to this matter, wrote up the recommendation to the Minister, part of which stated:
On May 26, 1999, we received representations from his lawyer, Me Lorne Waldman ... Me Lorne Waldman mentions in his letter that while living in Austria in 1988, he was convicted of one offence for possession of narcotics and that Mr. Thamber served four months in prison for this conviction.
So, since the beginning, Mr. Thamber has been contradictory. He never really admitted being found guilty for possession of narcotics for the purpose of trafficking. We have asked him to produce criminal clearance certificates and conviction certificates for all convictions. He did not comply with this request. His application for rehabilitation is dated May 13, 1997, and still on January 29, 1998, he declares in writing that he is not guilty of any accusations with possession of narcotics and was never sentenced nor fined for the above accusation. ...
Mr. Thamber is married to Jaspal Kaur BOLA since October 14, 1996. Mrs. Bola has [sic] been denied refugee status on December 19, 1997, but has been included in Mr. Thamber's application for permanent residence. A daughter was born on April 9, 1998. On July 6, 1998, he established a transport business in Canada with two family members. I am of the opinion that these factors are not important determinating [sic] factors in approving rehabilitation.
Mr. Thamber did not provide the required documentation, even if advised to do so. I am of the opinion that Mr. Thamber has not really accepted the responsibility for the offence for which he is submitting an application of rehabilitation nor did he express remorse. He is very contradictory in his declarations and I believe his credibility is doubtful.
For all these reasons, I DO NOT RECOMMAND [sic] THAT REHABILITATION BE GRANTED TO MR. THAMBER.
ANALYSIS:
[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. In the case before me the Minister has discretion, pursuant to subsection 19(1)(c.1) of the Act, to find that a person who might otherwise be inadmissible due to a conviction outside Canada for a criminal offence, is indeed admissible as a result of the fact that the person has been found to have been rehabilitated. The Applicant was a convention refugee who applied for landing under section 46.04 of the Act, but in light of the fact that he was inadmissible due to having committed a criminal offence outside of the country, the Applicant was required to show that he had been rehabilitated. Under subsection 19(1)(c.1) of the Act, persons have the right to make applications to the Minister for a finding of rehabilitation. The Applicant can be removed if the Minister does not make a finding of rehabilitation.
[10] In my view, reasons are required to be provided for decisions of this nature, as per the Supreme Court decision in Baker v. M.C.I., supra. In my view, immigration officer Landry's June 21, 1999 "Reasons for Recommendation" constitute the reasons for the decision on this matter.
[11] In my view, the Minister erred by not considering relevant evidence and by coming to an unreasonable conclusion, given the totality of evidence supporting the Applicant's rehabilitation. The Applicant arrived in Canada in 1991 and has had no criminal charges or convictions against him during that period of time. Furthermore, there is no evidence that he had any criminal charges or convictions in the two years subsequent to the 1989 charge and the subsequent conviction in Austria.
[12] It is not surprising, in light of the documentation provided to him by the Austrian authorities, that the Applicant was somewhat confused as to whether or not he had actually been convicted for the drug offence. As stated, the Austrian authorities provided the Applicant with a criminal clearance certificate showing that they had no record of any convictions attributable to him. I also note that the immigration officer had in his possession the aforementioned document from Interpol Vienna which described the Applicant's 1988 offence and stated at the bottom of the page:
...Criminal record will under Austrian law be destroyed as a rule 5 years after the latest conviction, and must not be taken into consideration thereafter.
[13] The above information also applies to the immigration officer's finding that the Applicant failed to submit with his application one of the required mandatory documents, namely a criminal conviction certificate. The Applicant was convicted in 1989 and sentenced in 1990. As such, his Austrian criminal record would have been deleted by the date of his Canadian application for criminal rehabilitation, which was submitted in May of 1997. The immigration officer should therefore have been aware that it was impossible for the Applicant to obtain a conviction certificate. The Immigration Manual guidelines recognize that clients may not be able to obtain conviction certificates and, if an explanation is provided by way of statutory declaration, this may constitute a satisfactory substitute for such a certificate. There cannot be any doubt that the Applicant attempted to obtain the conviction certificate and was unable to do so through no fault of his own.
[14] In terms of the reasonableness of the officer's decision, it is my view that it was indeed reasonable for Ms. Landry to question the Applicant's credibility, as he did tell two different stories about how the 1988 events (the offense and arrest) occurred. However, I am very concerned that officer Landry did not apparently consider the effect of the Applicant's ten crime-free years since 1989.
[15] In this connection, it is very important to look at the Minister's guidelines, contained in the "Immigration Manual" at Chapter IP-11, entitled "Criminal Rehabilitation". At section 3.7 there is requirement for certain pieces of "Mandatory Supporting Documentation," including criminal clearance certificates from the appropriate authorities in the areas where the Applicant has resided for the past ten years. The Applicant did provide such a clearance certificate. It also requires a conviction certificate for all convictions, however, the Applicant was unable to obtain the same because Austria normally destroys conviction records five years after the conviction occurred.
[16] The most important part of the "Immigration Manual" guidelines relates to section 6, entitled "Recommending Rehabilitation," which states at page 9 that:
Rehabilitation means only that the risk of further criminal activity is assessed to be improbable. Applicants may be considered rehabilitated when they demonstrate that they have been leading a stable lifestyle with no further criminal involvement.
The Manual then goes on to state at section 7, entitled "Determining Rehabilitation" at page 11:
A number of factors must be taken into account in assessing whether a person has been rehabilitated.
Rehabilitation may be demonstrated by the passage of time and through an examination of the person's activities and lifestyle pre and post offence. Rehabilitation does not mean that there is no risk of further criminal activity, only that the risk is assessed to be unlikely. The person's reason for wanting to come to Canada is not a consideration for rehabilitation but is an important factor when determining whether to facilitate the application.
Section 7.2 deals with "Rehabilitation considerations and evaluating risk" and a portion thereof reads as follows:
Rehabilitation considerations must be assessed to determine the likelihood or risk of the applicant's continued involvement in unlawful activities. These include:
- acceptance of responsibility for the offence;
- evidence of remorse for any harm done;
In this case, it is reasonable to find that the Applicant does not comply with either of those guidelines. However, there are further considerations, including:
- evidence of stability in employment and family life...
The Applicant is running a business and has a wife and child now. Officer Landry dismisses these as factors that "are not important determinating [sic] factors in approving rehabilitation". I take some issue with the statement that these are not important factors, however I agree that they certainly are not determinative of the issue in and of themselves. Section 7.4 concludes with comments on "Recommendation":
The onus is on applicants to demonstrate that they have successfully overcome any past difficulties which brought them into conflict with the law. The degree of risk presented by the applicant's presence in Canada can be assessed on the basis of the factors outlined in Section 7.3.
Officers should consider after reflection, what are the chances of these applicants entering or remaining in Canada without committing further offences. What are their chances of successful resettlement without committing a further offence? Is criminal activity likely to reoccur?
[17] To my mind, the above section reinforces the importance of the fact that, at the time that the immigration officer made the recommendation, the Applicant had not reoffended for a period of ten years (from 1989 to1999). The officer mentions other factors which certainly can be considered, but to omit perhaps the most important factor to be considered in such decisions constitutes a reviewable error.
[18] In the case ofDee v. M.C.I., [2000] 3 F.C. 345 (T.D.), a very similar case to the present one, the applicant had been free of any criminal activity for a period of seventeen years and was almost sixty years old. In the present case, the Applicant is slightly younger and has ten years of no criminal activity. However, the essence of the cases is the same. On the facts in Dee, the matter was returned to the Minister for reconsideration. As such, I am also issuing an order allowing this application and directing the Minister to reconsider the matter in a manner not inconsistent with these reasons.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
March 12, 2001