Date: 20050810

Docket: IMM-520-05

Citation: 2005 FC 1101

Montréal, Quebec, August 10, 2005

PRESENT: THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

GAEL MBIKAYI MUTANDA

Applicant

and

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision by an immigration officer (the officer) dated January 17, 2005, accepting the application of Gael Mbikayi Mutanda (the applicant) for a visa exemption on humanitarian and compassionate grounds, but denying his application for permanent residence under section 21 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the Act), because the applicant was subject to a removal order.

RELEVANT FACTS

[2]                The applicant is a citizen of the Democratic Republic of the Congo (Congo), and came to Canada on December 30, 1996. On his entry, he filed a refugee claim which was denied on November 25, 1998. On February 14, 1999, the applicant then filed an application for permanent residence on humanitarian and compassionate grounds.

[3]                On November 14, 2000, the applicant was convicted for two minor offences, specifically for a theft under $5,000 and for possession of stolen property under $5,000. On December 14, 2000, an officer interviewed the applicant in order to assess his application for a visa exemption on humanitarian and compassionate grounds. The applicant then stated that he had not been found guilty or accused of a crime in Canada, even though he had been the month before.

[4]                On January 17, 2005, the applicant was notified of the officer's decision that his application for permanent residence had been denied because he was inadmissible on grounds of criminality.

ISSUES

[5]                1. Did the immigration officer err in determining that the permanent residence application had to be denied because the applicant was subject to the removal order?

2. Does the decision respect the rules of procedural fairness?

ANALYSIS

1. Did the immigration officer err in determining that the permanent residence application had to be denied because the applicant was subject to the removal order?

[6]                The applicant submits that, first, the officer's decision is on its face inconsistent, because it allows the application for a visa exemption on humanitarian and compassionate grounds, but then refuses to grant permanent resident status because the applicant is subject to a removal order.

[7]                An application for residence based on humanitarian and compassionate grounds must be done in two steps. First, the officer must determine whether the applicant should be exempted from his statutory obligation to apply for an immigrant visa before coming to Canada, in accordance with subsection 11(1) of the Act.

[8]                The second step is then to verify whether the applicant respected the requirements established by the Act, including the security requirements:

5.5 Two-step assessment (H & C decision / Permanent residence)

An application for consideration to remain in Canada on H & C grounds is comprised of two assessments:

·         H & C assessment; and

·         Assessment of application for permanent residence in Canada.

(Page 55 of the respondent's record - Policy manual on Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds)

[9]                Even though the first step had been positive, the officer determined that the applicant did not meet the criteria required for the second step. If the officer determined that the applicant was inadmissible, he had to refuse his permanent residence application:

5.9 Second-step assessment: Toward the decision to confirm permanent residence

Processing of the application for permanent residence follows a positive H & C decision.

In order to become a permanent resident, the applicant must meet the requirements for permanent residence in R68, including that the applicant and their family members, whether accompanying or not, are not inadmissible and otherwise meet the requirements of the Act and Regulations.

. . .

The officer assesses all information relating to the requirements and admissibility of the applicant up to the time the applicant is granted permanent resident status, including the permanent residence interview. A negative decision may be made at any time during processing if the applicant or the family members are found to be inadmissible. [Emphasis added.]

(Page 56 of the respondent's record - Policy manual on Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds))

[10]            When the officer learned that the applicant had been found guilty of theft and of possession of stolen property, and that he was therefore inadmissible, he had no discretion in his decision. He had to refuse the application for permanent residence:

5.12 Inadmissible applicants

Although foreign nationals who are inadmissible may submit an H & C application, a positive H & C decision to waive certain selection criteria does not overcome admissibility requirements. If, after the H & C application is made, it is determined that the foreign national is admissible, the application for permanent residence must be refused. . . . [Emphasis added.]

(Page 57 of the respondent's record - Policy manual on Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds)

[11]            Contrary to the applicant's claims, the acceptance of the application for permanent residence on humanitarian and compassionate grounds does not relieve the applicant of his inadmissibility. That acceptance only relieves the applicant of the requirement to apply for permanent residence from outside Canada. Once that requirement had been waived, the officer had to examine the possibility of permanent residence, which the officer did; he then acted correctly in determining that the applicant was inadmissible. There is therefore no reviewable error on this first question.

2. Does the decision respect the rules of procedural fairness?

[12]            The applicant also alleges that the precepts of procedural fairness were violated, because he did not have the opportunity to make his submissions regarding his criminality and his subsequent inadmissibility.

[13]            After completing that analysis, it is important to briefly review the chronology of this matter. On February 15, 1999, the applicant filled out an application for exemption on humanitarian and compassionate grounds. In that application, at question L:

Have you or any of your dependants in Canada or abroad:

1.                   . . .

2.                   . . .

3.                   Been charged or may be charged for a crime or offence in Canada or any other country?

The applicant answered NO. The applicant lied considering that in October 1998, criminal charges had been brought against him, following a theft.

[14]            On November 14, 2000, the applicant was found guilty of two crimes with which he had been charged. However, one month later, on December 14, 2000, during his interview with an immigration officer regarding his application for exemption on humanitarian and compassionate grounds, the applicant did not mention his criminal record in Canada. Worst yet, when questioned about whether he had already been found guilty of or charged with a crime or an offence in another country or in Canada, he flatly stated that he had not:

[TRANSLATION]

Q: Have you been convicted of or charged with a crime or offence in another country or in Canada?

A: NO.

(Page 15 of the tribunal record - Interview record of December 14, 2000)

[15]            The officer who decided the applicant's permanent residence did not have to confront him with his criminal record once the hearing was over, since it was an element that the applicant knew better than any person. The applicant is therefore a victim of his own actions, because he voluntarily hid his criminal record on more than one occasion. It was following the applicant's fingerprint check that the officer learned of his convictions.

[16]            Further, the applicant does not have clean hands, since he lied to the officer. This reason in itself would justify the dismissal of the application for judicial review:

When an applicant applies to this Court for a discretionary order, as is the case here, his conduct must be beyond reproach (Kouchek v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 323 (T.D.) (QL)). . . .

Clearly, the applicant did not come to Court with clean hands, and for this reason alone it is proper for the Court to dismiss the application for judicial review at bar. The Court is not prepared to accept that a refugee claimant who has fabricated a story on the advice of a former representative can seek a new hearing before a panel of different members simply on the basis that he has been badly advised by that person. The applicant cannot profit here from his own turpitude. It must be borne in mind that the applicant has taken an oath to . . . tell the complete truth. He must accordingly bear full responsibility for any perjury he may have committed before the panel.

(Jaouadi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1347, [2003] F.C.J. No.^o1714 at paragraphs 17 and 19)

[17]            It is therefore my opinion that the rules of procedural fairness have not been breached, because the applicant was clearly aware of the fact that he had been convicted for theft and for possession of stolen property; moreover, he did not have clean hands in hiding this fact from the immigration officers. For these reasons, this application for judicial review must be dismissed.

[18]            The applicant's counsel proposes the following question for certification:

Does the wording of section 25 of the Act prevail over the text of sections 67 and 68 of the Regulations?

Counsel did not persuade me that there could be confusion in the application of the legislation and I am even less persuaded that it was a question of general importance. The question will therefore not be certified.

ORDER

THE COURT ORDERS that:

1.                   The application for judicial review be dismissed;

2.                   No question will be certified.

     "Pierre Blais"