Note that in the case below, the applicant managed to string things along for close to 19 years, an unprecedented period of time, while he sought various, creative ways to remain in Canada despite his previous criminal conviction in the US. Needless to say, the lengthy legal battle imposed a substantial cost on the system, which could have been diverted to deal with more meritorious cases.
Lasisi v. Canada (Minister of Citizenship and Immigration)
Between
Lafisu Eji Lasisi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 613
2011 FC 495
Docket IMM-1848-10
Federal Court
Montréal, Quebec
Tremblay-Lamer J.
Heard: April 21, 2011.
Judgment: April 27, 2011.
(26 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 TREMBLAY-LAMER J.
:-- This is an application for judicial review, pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision of the Director
General of the Case Management Branch at Citizenship andImmigration Canada (the Minister's delegate), dated December 7,
2009, whereby the Minister's delegate denied an application
submitted by Lafisu Eji Lasisi (the applicant) for criminal
rehabilitation under paragraph 36(3)(c) of the IRPA.
I. BACKGROUND
2 The applicant, a citizen of Nigeria, first came to Canada as
a visitor in 1992. Although he submitted a claim for refugee status
at that time, it was subsequently declared abandoned. The applicant
was directed to appear, in September of 1994, at an inquiry that
would consider,
inter alia, his use of false identity documents.
The applicant failed to appear and in April of 1995 an immigration
warrant was issued for his arrest.
3
At some point in 1993, the applicant had left Canada for the
United States of America (USA). On June 2, 1995, he was convicted
in the US of Possession of a Fraudulent ID Card in contravention of
Illinois state law and was sentenced to 18 months probation. In
November of 2002, the applicant returned to Nigeria where he lived
until October 2006.
4
On October 2, 2006, the applicant returned to Canada, using
fraudulent identity documents to enter the country. He submitted
another refugee claim, but it was eventually rejected as he was
deemed ineligible to submit a further claim. A deportation order
was issued against the applicant in February of 2007. He submitted
a Pre-Removal Risk Assessment application, which was also rejected
in March of 2008.
5
On June 20, 2007, approximately a month after marrying a
Canadian citizen, the applicant submitted an application for
permanent residence as a member of the spouse or common-law partner
in Canada class, as well as an application for criminal
rehabilitation in respect of the US fraudulent ID offence. With
Page 5
respect to his application for criminal rehabilitation, the
applicant indicated, in part:
I believe I am rehabilitated because it's been well
over 10 years. I have not re-offended or been involved
in any activity that is illegal... I feel ashamed and
remorseful for these offences, and have learnt my
lesson.
6
On May 28, 2009, an analyst at the Case Management Branch at
Citizenship and Immigration Canada (CIC) prepared a rehabilitation
assessment recommending a negative determination with regards to
the application for criminal rehabilitation (the rehabilitation
assessment). The assessment indicated that the applicant's
conviction in the US rendered him inadmissible to Canada due to
serious criminality under paragraph 36(1)(
b) of the IRPA because
the US offence was equivalent to "Personation with intent to gain
advantage for himself, pursuant to section 403(
a) of the Criminal
Code of Canada."
7
The analyst indicated that CIC officials were, "not satisfied
that [the applicant] would not re-offend in a similar manner if
placed in a situation of need." Although it was noted that the
applicant had stated the he had learnt from the US conviction and
now understood the consequences more fully, the analyst found that
the applicant had, nonetheless, re-offended in a similar manner by
using false documents to enter Canada in 2006.
8
The rehabilitation assessment was sent to the applicant for
comment on August 24, 2009 and the applicant responded with
submissions on October 30, 2009.
II. THE DECISION UNDER REVIEW
9
On December 7, 2009, the Minister's delegate decided not to
grant the application for criminal rehabilitation under paragraph
36(3)(
c) of the IRPA. This decision was communicated to the
applicant via a letter dated March 18, 2010. The applicant
requested reasons which were sent on June 24, 2010. They consisted
of the text of the rehabilitation assessment that had been sent to
the applicant for comment in August of 2009, coupled with the
following hand-written note which was dated December 7, 2009 and
signed by the Minister's delegate:
Subject has a history of purposely using false
documentation. Most recently was in 2006 when he used
Page 6
a false passport to enter Canada. It can be argued
that a person has not committed a criminal offense by
using a false document to enter Canada for purposes of
making a refugee claim. However subject was deemed
ineligible for making a claim and therefore
demonstrated continued criminal behaviour in using
false documentation.
I am not satisfied the subject has sufficiently
demonstrated evidence of being re-habilitated.
III. ISSUES
10
The applicant raises three issues for consideration by this
Court:
a) Did the Minister's delegate breach the duty of
procedural fairness owed to the applicant by
making an alteration to the rehabilitation
assessment?
b) Did the Minister's delegate err by providing
inadequate reasons?
c) Was the decision not to grant the applicant's
request for criminal rehabilitation otherwise
unreasonable?
IV. LEGISLATIVE BACKGROUND
11
Paragraph 36(1)(b) of the IRPA indicates that a permanent
resident or foreign national is inadmissible on grounds of serious
criminality if they have been convicted of an offence outside of
Canada that, if committed in Canada, would constitute an offence
under an Act of Parliament punishable by a maximum term of at least
10 years:
Serious criminality
36. (1) A permanent resident or a foreign national is
inadmissible on grounds of serious criminality for
...
(
b) having been convicted of an offence outside
Canada that, if committed in Canada, would
constitute an offence under an Act of Parliament
Page 7
punishable by a maximum term of imprisonment of at
least 10 years; or
...
* * *
Grande criminalité 36. (1) Emportent interdiction de
territoire pour grande criminalité les faits suivants
:
[...]
b
) être déclaré coupable, à l'extérieur du Canada,
d'une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale
punissable d'un emprisonnement maximal d'au moins
dix ans;
[...]
12
However, paragraph 36(3)(c) of the IRPA indicates, in part,
that inadmissibility does not result from the circumstances set out
in paragraph 36(1)(
b) if, after the prescribed period (five years),
the permanent resident or foreign national satisfies the Minister
that they have been rehabilitated:
Application
36(3) The following provisions govern subsections (1)
and (2):
...
(
c) the matters referred to in paragraphs (1)(b)
and (
c) and (2)(b) and (c) do not constitute
inadmissibility in respect of a permanent resident
or foreign national who, after the prescribed
period, satisfies the Minister that they have been
rehabilitated or who is a member of a prescribed
class that is deemed to have been rehabilitated;
Page 8
...
* * *
Application 36(3)
Les dispositions suivantes régissent l'application des
paragraphes (1) et (2) :
[...]
c
) les faits visés aux alinéas (1)b) ou c) et
(2)
b) ou c) n'emportent pas interdiction de
territoire pour le résident permanent ou
l'étranger qui, à l'expiration du délai
réglementaire, convainc le ministre de sa réadaptation
ou qui appartient à une catégorie réglementaire de
personnes présumées réadaptées;
[...]
V. ANALYSIS
a)
Did the Minister's delegate breach the duty of
procedural fairness owed to the applicant by making an
alteration to the rehabilitation assessment?
13
The applicant submits that the Minister's delegate engaged
in "sharp practice" by making an alteration to the text of the
rehabilitation assessment relied upon in his reasons.
14
The impugned alteration is found at the beginning of the
assessment where the CIC analyst outlined the applicant's
immigration history. After indicating that the applicant had
arrived in Canada as a visitor in 1992 and had, in 1993, been
directed to appear at an inquiry regarding, among other things, the
use of false identity documents, the analyst wrote, "Failed to
appear for Inquiry in September 200 4 and an immigration warrant
for arrest was issued in April 1995" [emphasis added]. In the
version of the assessment included in the reasons provided by the
Minister's delegate, the "200" was crossed out, and a "199" was
Page 9
written in so that the sentence effectively read, "Failed to appear
for Inquiry in September 199 4 and an immigration warrant for
arrest was issued in April 1995" [emphasis added].
15
The applicant argues that this alteration materially changed
the rehabilitation assessment as compared to the version that was
provided for comment and response. He submits that this change
constitutes unfair and unjust "sharp practice" because the
implausibility of the applicant not appearing at an inquiry in
September 2004 when the arrest warrant in relation to that
non-appearance was issued nine years earlier, was one of the points
relied upon by the applicant in his rebuttal submissions.
16
There is no merit to this argument. It is clear that the
"2004" appearing in the original rehabilitation assessment was a
typographical error. The CIC analyst undoubtedly meant to indicate
that the applicant did not appear for the inquiry in September of
1994, not 2004. It seems quite unlikely, indeed, that the CIC
analyst would have been under the impression that an arrest
warrant, issued as it was in April 1995, would have been issued
nine years in advance of the event that triggered it - i.e. nine
years before the failure to appear. If anything, the alteration
reveals that the Minister's delegate attentively reviewed the
analyst's submissions and considered the applicant's response.
b)
Did the Minister's delegate err by providing
inadequate reasons?
17
The applicant argues that the reasons provided by the
Minister's delegate are inadequate. He submits that the handwritten
portion of the reasons were "illegible and very difficult to make
out any meaning at all". This contention is also without merit.
Although typewritten reasons may have been preferable, it is not
difficult to read and understand the delegate's handwriting in this
case.
18
Furthermore, as the respondent points out, the applicant
does not indicate having made any request to obtain a typed version
of the reasons. In this regard, I adopt the words of Justice Edmond
Blanchard from the
Hayama v Canada (Minister of Citizenship and
Immigration)
, 2003 FC 1305, [2003] FCJ No 1642, at para 15 of the
decision:
... If the applicant was unsatisfied with the decision
letter and felt it did not adequately explain the
decision, a request should have been made for further
Page 10
elucidation. There is no evidence that such a request
would have been refused. ...
19
I find that the delegate's reasons are adequate. The "four
fundamental purposes" for the provision of reasons set out by the
Federal Court of Appeal in
Vancouver International Airport
Authority v Public Service Alliance of Canada
, 2010 FCA 158, [
2010] FCJ No 809, at para 16, are met. It is clear why the
Minister's delegate decided the way that he did. Sufficient details
were provided so that the applicant could decide whether or not to
apply for judicial review, and so that this Court can assess
whether the decision falls within a range of possible acceptable
outcomes. The reasons provided are justified, intelligible and
display a discernable rationality and logic.
c)
Was the decision not to grant the applicant's request
for criminal rehabilitation otherwise unreasonable?
20
The applicant submits that the delegate's ultimate decision
is unreasonable because it is based on the erroneous determination
that the applicant's use of false identity documents to re-enter
Canada in 2006 constituted "criminal behaviour". The CIC analyst,
in the rehabilitation assessment relied upon by the Minister's
delegate, indicated that the applicant "broke the law" when he
re-entered Canada in 2006 using a fraudulent passport. The
Minister's delegate agreed with this conclusion and explained in
his handwritten reasons that the applicant's use of fraudulent
documentation in 2006 amounted to "criminal behaviour".
21
The applicant contends that section 133 of the IRPA
expressly exempts refugees from prosecution for using false
documents to enter the country. Thus, the applicant submits the
fact that he re-entered the country in 2006 via "improper means"
could not properly be considered a violation of Canadian law, nor
could it amount to "criminal behaviour".
22
The question of whether the Minister's delegate erred in
exercising his discretion under paragraph 36(3)(
c) of the IRPA is a
question that must be reviewed against the reasonableness standard.
23
Section 133 of the Immigration and Refugee Protection Act
reads as follows:
Deferral 133. A person who has claimed refugee
protection, and who came to Canada directly or
indirectly from the country in respect of which the
Page 11
claim is made, may not be charged with an offence
under section 122, paragraph 124(1)(
a) or section 127
of this Act or under section 57, paragraph 340(
c) or
section 354, 366, 368, 374 or 403 of the Criminal
Code, in relation to the coming into Canada of the
person, pending disposition of their claim for refugee
protection or if refugee protection is conferred.
* * *
Immunité 133. L'auteur d'une demande d'asile ne peut,
tant qu'il n'est statué sur sa demande, ni une fois
que l'asile lui est conféré, être accusé d'une
infraction visée à l'article 122, à l'alinéa 124(1)
a)
ou à l'article 127 de la présente loi et à l'article
57, à l'alinéa 340
c) ou aux articles 354, 366, 368,
374 ou 403 du Code criminel, dès lors qu'il est arrivé
directement ou indirectement au Canada du pays duquel
il cherche à être protégé et à la condition que
l'infraction ait été commise à l'égard de son arrivée
au Canada.
24
Justice Carolyn Layden-Stevenson in Uppal v Canada (Minister
of Citizenship and Immigration)
, 2006 FC 338, [2006] FCJ No 455, at
para 21, indicated that section 133 of the IRPA is intended, "to
allow
bona fide refugees and refugee claimants to use false
passports and supporting documents obtained by them for the purpose
of making their way into Canada and to shelter them from a finding
of inadmissibility for holding and using those documents." The
Minister's delegate was right to point out that the applicant was
not a
bona fide refugee. Section 133 indicates that a person may
not be charged with offences relating to fraudulent identification,
"pending disposition of their claim for refugee protection or if
refugee protection is conferred." There is no pending refugee claim
in the applicant's case and refugee protection has not been
conferred. As such, section 133 of the IRPA does not apply. In any
event, section 133 of the IRPA only prevents charging an individual
with an offence, it does not legalize the use of false
identification.
25
Indeed, the applicant did violate Canadian law when he
entered the country in 2006 by means of fraudulent identification.
Indeed, this was evidence of continued criminal behaviour similar
to the criminal behaviour in respect of which the applicant claims
to be rehabilitated. As such, I can not find that the delegate's
determination that the applicant had not "sufficiently demonstrated
Page 12
evidence of having re-habilitated" falls outside the range of
possible, acceptable outcomes which are defensible in respect of
the facts and law. The delegate's decision was not unreasonable.
26
For the foregoing reasons, the application for judicial
review will be dismissed.
JUDGMENT
THIS COURT'S JUDGMENT IS that
the application for judicial review
is dismissed.
TREMBLAY-LAMER J.
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