Ottawa, Ontario, June 14, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT
[1] This is an application for judicial review of the decision of an immigration officer (Officer), dated March 4, 2005 (Decision), wherein the Officer refused to seek authority to issue a temporary residence permit (TRP) for Carlos Manuel Malicia (Applicant). The parties are in agreement that this application should be allowed and the Decision sent back for redetermination. However, they dispute whether this Court should provide certain directions requested by the Applicant.
BACKGROUND
[2] The Applicant is a Portugese citizen. He came to Canada with his family in 1975, when he was 12 years old, and was granted permanent resident (PR) status. Regrettably, the Applicant engaged in repeated criminal behaviour as he grew up. On June 7, 1994, he was ordered deported from Canada. The Applicant applied for a new PR visa and sought a humanitarian and compassionate (H & C) exemption to the requirement under the now-repealed Immigration Act, R.S.C. 1985, c. I-2 that he apply for and obtain an immigration visa from outside of Canada.
[3] The H & C application was denied in February 2002. However, in February 2003 this Court quashed that decision on judicial review and sent the matter back for redetermination. On October 23, 2003, the H & C application was granted in part. The Applicant was exempted from the requirement to apply for a visa outside of Canada, referred to as the "first step of the process." However, at that time the Officer did not grant an exemption to the "second step," which examined the admissibility requirements for PR status. The Applicant had a prior criminal record that rendered him inadmissible. Consequently, the PR visa was refused on November 13, 2003, notwithstanding that an H & C exemption had been granted in regard to the "first step."
[4] In her November 2003 decision letter, the Officer stated that, taking into account the Applicant's "particular circumstances," she "may be prepared to consider seeking authority from the Minister" to grant a TRP to the Applicant. The Officer requested that the Applicant provide more information about his criminal history, including an "Application for Rehabilitation." The Applicant provided this information on April 18, 2004.
[5] On May 3, 2004, the Officer responded by letter, acknowledging receipt of the information from the Applicant but stating that the situation had changed. The Officer noted that, on April 18, 2004, the Applicant had been charged with new criminal offences, namely:
· assault with a weapon;
· threatening death / bodily harm;
· assaulting a peace officer (three counts); and
· mischief under $5,000.
The Officer requested further information and submissions by the Applicant regarding these new charges.
[6] On March 4, 2005, the Officer issued her Decision to refuse the TRP. That Decision is challenged by the Applicant.
DECISION UNDER REVIEW
[7] The Officer's Decision letter of March 4, 2005 dealt with the Applicant's permanent residence application and the TRP issue. The Officer reviewed the fact that an H & C exemption was granted in October 2003 to the "first stage" of the process, but that the Applicant was still required to meet the "second stage," that is, the statutory admissibility requirements. The Officer stated that the Applicant was inadmissible as a permanent resident due to criminality. The Officer followed up with the following sentence: "We have taken into consideration the factors in your case, and we are not prepared to seek authority from the minister to issue you a temporary resident permit."
[8] Initially on this application for judicial review, the Applicant argued that the Officer's Decision should be set aside because reasons had not been provided. It turned out that this had been an administrative oversight; in fact, notes had been made by the Officer explaining how she had come to her Decision, but Citizenship and Immigration Canada (CIC) had misplaced the notes.
[9] The Respondent consented to allow the Officer's Decision to be set aside and sent back for redetermination. However, the Applicant asks that the Court issue directions that the immigration officer who reconsiders the Decision should not reconsider whether the first step of H & C exemption should apply. The Applicant says that the exemption decision was not contested and should, therefore, remain unchanged. The Respondent does not agree.
THE ISSUE
[10] The issue raised in this Application is essentially as follows:
1. Should this Court, in allowing this application, issue directions to the effect that the Applicant should remain exempt from the requirement that he apply for a residence visa or permit from outside of Canada?
THE POSITIONS OF THE PARTIES
[11] The Applicant submits that a positive "stage 1" H & C decision provides the foundation for considering whether to issue a TRP. The Applicant says that there is no form or formal, legislated process for applying for a TRP; in practice, an applicant is only invited to apply for a TRP after a positive "stage 1" and a negative "stage 2" H & C decision has been made (that is, after a person has been exempted from the requirement to apply from outside of Canada but has nonetheless been found inadmissible for permanent residence).
[12] In the Applicant's view, the existence of a positive "stage 1" H & C decision is the starting point for a TRP determination and should remain in place when the TRP decision is sent back for redetermination. The Applicant acknowledges that there are different considerations for granting an H & C exemption and issuing a TRP permit, and that an officer may consider all of the relevant facts that have emerged prior to making a decision on the TRP.
[13] The Respondent takes the position that the H & C decision and the TRP decision are discrete events which are essentially unrelated. The only connection is that an invitation to apply for a TRP is made after a negative "stage 2" H & C decision. Each decision turns on different, although sometimes overlapping, considerations.
[14] The Respondent points out that an immigration officer must take into account all relevant facts and considerations when deciding whether to issue a TRP; this would include considerations present at the time the positive "stage 1" H & C decision was made. Therefore, the Respondent says, a direction by this Court with regard to the treatment of the H & C decision is inconsequential.
ANALYSIS
[15] The Decision that is being returned for reconsideration is contained in the Immigration Officer's letter of March 4, 2005. After explaining the two-step process involved in an H & C application the Officer says:
As a result, your application for permanent residence is refused and the exemption previously granted has no further effect. We have taken into consideration the factors in your case, and we are not prepared to seek authority from the Minister to issue you a temporary resident purpose.
[16] This suggests that the Officer decided the following three issues:
1. The PR application was refused;
2. The exemption previously granted on the first-step of the PR application had no further effect;
3. The Officer declined to seek a TRP.
[17] The parties have agreed that this matter should be returned for reconsideration for lack of reasons.
[18] The Applicant says, in effect, that when the Decision goes back, the Court should direct that the exemption from stage 1 or the PR application should continue to apply.
[19] To accede to this request, however, would be for the Court to decide that the Officer was wrong to decide that "the exemption previously granted has no further effect."
[20] It is the Court's view that, when the matter is returned for reconsideration, the Officer responsible is required to re-examine all aspects of the Decision, and the Court should not interfere with this process by isolating one aspect and placing it outside the scope of reconsideration. The Court should not issue a direction that has the effect of making a decision that is for the decision -maker to make and, while the Court may guide the decision-making process, it cannot make the actual decision. See Neskonlith Band v. Canada(Attorney General), [1997] F.C.J. No. 1218 (QL) (F.C.T.D.) at para. 17.
[21] A direction was warranted in Warach v. Canada(Minister of Citizenship and Immigration), [1999] F.C.J. No. 488 (QL) (F.C.T.D.) because there was nothing to suggest that the previous finding of a well-founded fear of persecution would not continue to apply. Similarly, in Castaneda Covarrubias v. Canada(Minister of Citizenship and Immigration), 2006 FC 299 there was no dispute over the abuse issue and no point in reconsidering it on re-determination.
[22] In the present case, both sides strongly contest the continuing applicability of the conditions that gave rise to the stage 1 exemption and the Decision itself clearly rejects that exemption and says it has no further effect.
[23] This gives rise to issues of fact and law concerning the continuing applicability of the stage 1 exemption. The Court cannot, at this juncture, effectively decide that issue by placing it beyond the scope of re-consideration.
[24] Presumably, if the Applicant is correct and there are no changes that would justify coming to a different conclusion from the previous decision on stage 1, then that is a factor the Officer will have to take into account in the re-determination. The TRP decision will also have to take into account all the facts and circumstances of the case. This will include the fact of a previous positive exemption decision at stage 1 and any relevant factors that might lead to a different conclusion on that point.
[25] At this stage of the process, the Court lacks a secure factual basis to follow Warach, above, or Castenada, above, and place the previous positive determination beyond issue. The parties are keenly contesting the significance of the new charges that were laid and the relevance of any change in circumstances that may have occurred since that positive determination was made. That will be a matter for the Officer to address as part of the reconsideration.
[26] For these reasons, the Court is of the view that the Decision of March 4, 2005 should be returned for reconsideration and that, as part of that exercise, the Officer should consider, if it remains relevant, the fact of a previous, positive stage 1 determination, as well as any other factors that have arisen since that determination was made and/or the Decision was rendered.
[27] 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 Judgment. 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.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-1813-05
STYLE OF CAUSE: CARLOS MANUEL MALICIA
v.
THE MINISTER OF CITIZENSHIP AND MMIGRATION
JUDICIAL REVIEW DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE RUSSELL
DATED: JUNE 14, 2006
WRITTEN REPRESENTATIONS BY:
MR. LORNE WALDMAN FOR THE APPLICANT
MR. MARTIN ANDERSON FOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. LORNE WALDMAN FOR THE APPLICANT
Waldman & Associates
Barristers & Solicitors
Toronto, ON
MR. JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA