Date: 20010628
Docket: IMM-3625-99
Neutral Citation: 2001 FCT 719
Halifax, Nova Scotia, this 28th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN J. O'KEEFE
BETWEEN:
MICHAEL ROY KNOTT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review, brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision of J. Annand, immigration officer, dated December 1, 1998. The decision of the immigration officer reads in part as follows:
Dear Client:
This refers to your request pursuant to subsection 114(2) of the Immigration Act for an immigration visa waiver on humanitarian and compassionate grounds.
Your application for permanent residence in Canada has been reviewed and it has been determined that you have a criminal conviction(s). You are, therefore, criminally inadmissible to Canada and your application must be refused.
It has been determined that insufficient humanitarian and compassionate grounds exist in your case to warrant the issuance of a Minister's Permit.
You are a person described in paragraph 27(2)(a) of the Immigration Act. A written report to this effect has been submitted and a direction for inquiry has been issued.
[2] The applicant seeks an order setting aside the above decision, and remitting the matter for redetermination by a different immigration officer in accordance with such directions as this Court finds fit.
Background Facts
[3] The applicant, Michael Roy Knott, entered Canada as a visitor on May 12, 1988. Thereafter, he married Arlene Jackson and applied for landing from within Canada as a spouse of a Canadian citizen on April 27, 1989. On April 26, 1990, by Order in Council, the applicant was exempted from applying for permanent residence in Canada from outside of Canada. The applicant and Arlene Jackson had three children together, born December 11, 1985, December 25, 1986, and March 18, 1991. The children are Canadian citizens and they were born in Canada. The applicant has since separated from his wife.
[4] On February 10, 1990, the applicant was charged with assault arising out of an argument with his wife. The applicant was previously arrested for assault, but his wife had withdrawn the charges.
[5] The applicant inquired as to the status of his application for landing on March 21, 1994 and provided an address to be contacted at. By letters dated June 8, 1994, September 6, 1994, November 29, 1994 and February 1, 1995, the applicant was advised that further documentation was required of him.
[6] The applicant and his present common-law wife, Donna Smith, have a son, Michael Clive Smith, born April 9, 1995. Michael Clive Smith has Down's Syndrome.
[7] The immigration officer received a call from the applicant on or about April 30, 1998. The officer's notes indicate that he had not been able to reach the applicant for two years before this date. Letters dated April 30, 1998 and September 25, 1998 were then sent by the immigration officer to the applicant requesting certain information. By letter dated October 21, 1998 the applicant sent a new application for permanent residence, together with supporting documents and submissions by his counsel.
[8] Upon receipt of this application, the immigration officer indicates the following at paragraphs 8 and 9 of his affidavit:
I considered that the decision whether the Applicant should be allowed to apply for landing on humanitarian and compassionate grounds had already been taken, in light of the Order-in-Council waiving that requirement. I therefore reviewed the Applicant's application to determine whether I would recommend that a Minister's permit should be issued to the Applicant, to allow him to remain in Canada despite his inadmissibility.
I considered the fact that the Applicant has four children born in Canada. However, the Applicant did not place compelling evidence before me that their best interests would be significantly affected if I were to refuse to issue him a Minister's permit. There was no evidence supporting the assertions of counsel that the applicant provides financial and emotional support to the three children he had with Arlene Jackson. There was equally no evidence supporting counsel's submission that the Applicant's paternal presence and support is especially important in light of the fact that his son with Donna Smith has Down's Syndrome. The Applicant did not have an impressive work history while in Canada; he had been working only for three of his ten years in Canada. The Applicant has committed a number of offences while in Canada and there was little evidence the Applicant had rehabilitated himself. Accordingly, I refused to recommend that a Minister's permit should be issued to allow the Applicant to remain in Canada notwithstanding his inadmissibility.
[9] On November 21, 1998, a report prepared under section 27 of the Act found the applicant to be a person in Canada, other than a Canadian citizen or permanent resident, described in paragraph 27(2)(a) and paragraph 19(2)(a) of the Act. The report under Section 27 indicates that the applicant has the following convictions:
October 21, 1990 Obstruct Peace Officer
June 22, 1993 Possession of Narcotic
April 16, 1997 Possession of Narcotic
July 23, 1997 Obstruct Peace Officer
[10] By letter dated December 1, 1998, the applicant's application was refused.
Applicant's Submissions
[11] The applicant submits that an immigration officer, on refusing an application for landing due to criminal inadmissibility, must look at the humanitarian and compassionate (H & C) aspects to see if the issuance of a Minister's Permit is warranted. In the instant case, the applicant argues the immigration officer stated no specific reason as to why a Minister's Permit should not be issued, nor did the immigration officer assess the H & C elements.
[12] The applicant contends the immigration officer simply looked or went through the motions in the decision. The applicant argues the best interests of his four children were not taken into consideration and that it is doubtful that any consideration was given to his family ties in Canada since this was not mentioned in the immigration officer's decision.
[13] The applicant submits it is a duty of procedural fairness to ensure that a fair and open procedure, appropriate to the decision being made, is used when administrative decisions are made. Those who are affected should have an opportunity to put forward their views before the decision is made.
[14] The immigration officer failed, in the applicant's submission, to take into consideration the hardship that his common-law wife would endure in his absence with a child with Down's Syndrome. The applicant has lived in Canada since 1988 and all of his children grew up with him. The applicant submits a sudden absence of the children's father will most definitely affect their livelihood.
[15] The applicant submits that he has taken the responsibility of fatherhood seriously and that he is supporting his children and spending time with them. The applicant submits Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 to illustrate that it is of primary concern when administrative decisions belittle the welfare of children who are Canadian citizens.
[16] The applicant contends that the interests of his family outweigh the negative aspects of his criminality. Therefore, the issuance of a Minister's Permit is appropriate in the instant case.
Respondent's Argument
[17] Evidence Not Ignored
The respondent submits the immigration officer did not ignore the fact that the applicant has four children. The respondent directs the Court's attention to
paragraph 9 of the immigration officer's affidavit.
[18] The respondent submits that the immigration officer's notes reflect the following reasons for refusing the applicant's application:
19. On June 21, 1995, Mrs. Knott confirmed that she was not living with the applicant;
20. A restraining order had been issued against the applicant with respect to Mrs. Knott, who had custody of the children;
21. The applicant had worked for about three of his ten years in Canada;
22. There was no proof that he provides support to his children;
23. The applicant has criminal convictions from 1990 and 1993 and two convictions in 1997;
24. The applicant does not appear to be rehabilitating himself.
[19] Decision Reasonable
The respondent submits the immigration officer's reasoning reflects that the officer was alert, alive and sensitive to the fact that the applicant has four children in Canada and that the immigration officer was prepared to give that factor substantial weight. The respondent notes that the children's best interests will not always outweigh other considerations or that there will not be other reasons for denying an H & C claim even when the children's interests are given this consideration: Baker, supra at paragraph 75.
[20] The respondent submits the following at paragraphs 10 and 11 of its memorandum of argument:
In this case, the immigration officer was reviewing a new submission from the Applicant, dated October 22, 1998, with respect to an H & C application which had originally been commenced in 1989. The application had been approved in principle on April 26, 1990. However, the Applicant's conviction on criminal charges, and the fact that the Applicant could not be contacted for many years, led to the application remaining outstanding.
In light of the approval in principle of the Application, the immigration officer considered that the decision to allow the Applicant to apply for landing from within Canada owing to humanitarian and compassionate considerations had already been taken. The officer therefore considered whether the Applicant should be issued a Minister's permit, to allow him to remain in Canada despite being criminally inadmissible.
[21] The respondent next argues that the immigration officer considered the issue of a Minister's permit in accordance with Immigration Policy. Chapter IP-5 of the Immigration Manual directs officers to refuse inland applications for permanent residence where the applicant is inadmissible and to consider whether a Minister's Permit should be issued. Guidelines for the issuance of a Minister's permit are set out in Operations Memorandum IP95-07 and include situations where there are compelling grounds to warrant favourable consideration. The respondent therefore submits that, strictly speaking, the Baker, supra decision is not applicable to the immigration officer's decision in this case.
[22] The respondent nonetheless submits that the immigration officer's decision not to recommend issuance of a Minister's Permit was reasonable and that the officer was alert, alive and sensitive to the best interests of the applicant's children. The respondent submits the officer considered the following:
25. The applicant's claims that he provides financial and other support to his children were unsubstantiated;
26. The applicant has only worked three of his ten years in Canada;
27. A restraining order was issued against the applicant with respect to Mrs. Knott, who had custody of three of the applicant's children;
28. There was little evidence that the applicant was rehabilitating himself.
[23] In conclusion, the respondent submits that on the facts of this case, it was reasonable for the immigration officer to conclude that requiring the applicant to apply for landing from outside Canada would not cause such hardship to warrant a Minister's Permit.
Relevant Statutory Provisions
[24] The relevant provisions of the Immigration Act state:
| 19.(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: (a) persons who have been convicted in Canada of an indictable offence, or of an offence for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years, other than an offence designated as a contravention under the Contraventions Act; (a.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 by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or (ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, 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; . . . |
2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_: a) ont été déclarés coupables au Canada d'un acte criminel ou d'une infraction dont l'auteur peut être poursuivi par mise en accusation ou par procédure sommaire et qui peut être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal de moins de dix ans, à l'exception d'une infraction désignée à titre de contravention sous le régime de la Loi sur les contraventions; a.1) sont des personnes 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, par mise en accusation, d'un emprisonnement maximal de moins de 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, (ii) soit commis un fait -- acte ou omission -- qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal de moins de 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 la commission du fait; . . . |
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| 27.(2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who (a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c); |
(2) L'agent d'immigration ou l'agent de la paix doit, sauf si la personne en cause a été arrêtée en vertu du paragraphe 103(2), faire un rapport écrit et circonstancié au sous-ministre de renseignements concernant une personne se trouvant au Canada autrement qu'à titre de citoyen canadien ou de résident permanent et indiquant que celle-ci, selon le cas_: a) appartient à une catégorie non admissible, autre que celles visées aux alinéas 19(1)h) ou 19(2)c); |
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| 37. (1) The Minister may issue a written permit authorizing any person to come into or remain in Canada if that person is (a) in the case of a person seeking to come into Canada, a member of an inadmissible class; or (b) in the case of a person in Canada, a person with respect to whom a report has been or may be made under subsection 27(2). (2) Notwithstanding subsection (1), no permit may be issued to (a) a person against whom a removal order has been made who has not been removed from Canada pursuant to such an order or has not otherwise left Canada, unless an appeal from that order has been allowed; or (b) [Repealed, 1992, c. 49, s. 26] (c) a person in Canada with respect to whom an appeal made pursuant to section 77 has been dismissed. (3) A permit shall be in force for such period not exceeding three years as is specified in the permit. (4) The Minister may at any time, in writing, extend or cancel a permit. (4.1) Unless a permit specifies that a person may leave and re-enter Canada, the permit is cancelled if the person to whom the permit was issued leaves Canada. (5) The Minister may, on the cancellation or expiration of a permit, make a deportation order against the person to whom the permit was issued or direct that person to leave Canada within a specified period. (6) Where a person who has been directed by the Minister to leave Canada within a specified period of time fails to do so, the Minister may make a deportation order against that person. (7) The Minister shall, within thirty days following the commencement of each fiscal year or, if Parliament is not then sitting, within the first thirty days next thereafter that either House of Parliament is sitting, cause to be laid before Parliament a report specifying the number of permits issued during the preceding calendar year and in respect of each permit issued (a) to a person seeking to come into Canada, the inadmissible class of which that person is a member; or (b) to a person in Canada, the applicable paragraph of subsection 27(2) pursuant to which a report has been or may be made. |
37. (1) Le ministre peut délivrer un permis autorisant_: a) à entrer au Canada, les personnes faisant partie d'une catégorie non admissible; b) à y demeurer, les personnes se trouvant au Canada qui font l'objet ou sont susceptibles de faire l'objet du rapport prévu au paragraphe 27(2). (2) Par dérogation au paragraphe (1), ne peuvent obtenir le permis_: a) les personnes ayant fait l'objet d'une mesure de renvoi et qui se trouvent encore au Canada, sauf si la mesure a été annulée en appel; b) [Abrogé, 1992, ch. 49, art. 26] c) les personnes se trouvant encore au Canada, dans les cas où l'appel interjeté à leur égard en vertu de l'article 77 a été rejeté. (3) Le permis est valable pour la durée qui y est indiquée et qui ne peut dépasser trois ans. (4) Le ministre peut, par écrit, proroger le permis ou l'annuler. (4.1) Tout départ du Canada annule automatiquement le permis, sauf dans les cas où celui-ci précise que son titulaire est autorisé à quitter le Canada et à y rentrer. (5) Le ministre peut, dans les cas d'annulation ou d'expiration du permis, prendre une mesure d'expulsion contre son titulaire ou ordonner à ce dernier de quitter le Canada dans un délai déterminé. (6) Le ministre peut prendre une mesure d'expulsion contre les personnes à qui il a ordonné de quitter le Canada et qui ne l'ont pas fait dans le délai imparti. (7) Le ministre fait déposer devant le Parlement, dans les trente premiers jours de chaque exercice, ou, si le Parlement ne siège pas, dans les trente premiers jours de séance ultérieurs de l'une ou l'autre chambre, un rapport précisant le nombre de permis délivrés au cours de la précédente année civile et, pour chaque permis délivré_: a) dans le cas d'une personne cherchant à entrer au Canada, la catégorie non admissible à laquelle elle appartient; b) dans le cas d'une personne se trouvant au Canada, l'alinéa du paragraphe 27(2) au titre duquel un rapport a été fait ou peut l'être. |
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| 114.(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
114.(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière. |
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Issue
[25] Did the immigration officer make a reviewable error?
[26] I have reviewed the decision of the immigration officer and his affidavit. From a review of the decision dated December 1, 1998, it appears that the immigration officer did consider humanitarian and compassionate grounds. I note from paragraph 9 of the officer's affidavits sworn to on August 15, 2000 and October 13, 2000 that he stated in part:
I considered the fact that the Applicant has four children born in Canada. However, the Applicant did not place compelling evidence before me that their best interests would be significantly affected if I were to refuse to issue him a Minister's permit. There was no evidence supporting the assertions of counsel that the Applicant provides financial and emotional support to the three children he had with Arlene Jackson. There were no particulars of this alleged support either. There was equally no evidence supporting counsel's submission that the Applicant's paternal presence and support is especially important in light of the fact that his son with Donna Smith has Down's syndrome. . . .
The application form submitted by the applicant (page 14 of the tribunal record) clearly refers the respondent to his counsel's submissions with respect to questions 4A and 4B. These questions relate to humanitarian and compassionate issues. There is no requirement that the applicant's evidence be sworn. The immigration officer came to the conclusion that there was not any evidence to support the applicant's counsel's assertions that the applicant gave financial and emotional support to the three children. That statement is simply not correct. The applicant's counsel's letter of October 21, 1998 consists of seven parts, only one of which is submissions. The other six deal with information being presented to the respondent by the applicant's counsel on the applicant's behalf. The officer has made a reviewable error by stating that there was "no evidence"supporting the assertions of counsel. There is some evidence which should be considered by the decision maker. For this reason alone, I would allow the judicial review and quash the decision of the immigration officer to deny the permit.
[27] I would therefore allow the application for judicial review and direct that the decision of the immigration officer dated December 1, 1998 be set aside and the matter be returned for a redetermination by a different officer.
[28] I have considered the question submitted to be certified as a serious question pursuant to subsection 83(1) of the Act and I am not prepared to certify the question.
ORDER
[29] IT IS ORDERED that the decision of the immigration officer dated December 1, 1998 is set aside and the matter is returned for a redetermination by a different immigration officer.
"John A. O'Keefe"
J.F.C.C.
Halifax, Nova Scotia
June 28, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3625-99
STYLE OF CAUSE:MICHAEL ROY KNOTT
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MARCH 20, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: THURSDAY, JUNE 28, 2001
APPEARANCES:
Mr. Davies Bagambiire
FOR APPLICANT
Mr. Toby Hoffman
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Davies Bagambiire
347 Bay Street
Suite 1202, National Building
Toronto, Ontario
M5H 2R7
FOR APPLICANT
Department of Justice
Toronto Regional Office
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010628
Docket: IMM-3625-99
Neutral Citation: 2001 FCT _____
BETWEEN:
MICHAEL ROY KNOTT
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER