The impact of foreign criminal convictions in the spotlight in this unusual case:
Moscicki v. Canada (Minister of Citizenship and
Immigration)
Between
Robert Moscicki, Applicant, and
The Minister of Citizenship and Immigration
and the Minister of Public
Safety and Emergency Preparedness, Respondents
[2015] F.C.J. No. 1041
2015 FC 740
Dockets: IMM-4845-14, IMM-4614-14
Federal Court
Toronto, Ontario
McVeigh J.
Heard: December 3, 2014.
Judgment: June 12, 2015.
(66 paras.)
REASONS FOR JUDGMENT
1 McVEIGH
J.:-- The Applicant brought an application for judicial review of the decision
of the Immigration Division of the Immigration and Refugee Board ("the
Board") dated May 8, 2014, where the Board found the Applicant
inadmissible under subsection 36(1)(b) of the Immigration
and Refugee Protection Act, SC 2001, c 27
("IRPA") for serious criminality (IMM-4845-14). That judicial review
application was combined with IMM-4614-14, where the Applicant sought
declaratory relief against Citizenship and Immigration Canada ("CIC")
for a failure to conclude the Applicant's alleged 1989 application for permanent
resident ("PR") status as an un-accompanied minor child of his
father. The facts are generally common for both files.
2 Both
decisions were dismissed on December 11, 2014, without costs.
I. Background
3 The
Applicant is a citizen of Poland. He was 17 years old when he arrived in Canada
on October 18, 1989. The Applicant was sponsored as a dependent son by his
father who arrived approximately one year earlier. The Applicant says his
father became a landed immigrant on March 24, 1989. The Applicant's two younger
siblings have always remained in Europe.
4 In
March 1992, the Applicant was charged and on September 28, 1992, convicted of
"attempted residential burglary" in Cook County, Illinois, United
States. He was sentenced on January 22, 1993, to serve five years imprisonment
and given time served credit of 317 days. When his sentence was completed in
the United States, the Applicant was deported to Poland from the United States
but he returned to Canada on August 9, 2008 at Toronto Pearson International
Airport. When he arrived back in Canada, he was admitted on a Polish passport
with a temporary resident visa ("TRV") for six months.
5 In
February 2010, the Applicant applied for Canadian citizenship but was rejected
on June 3, 2013. CIC stated there was no indication that he was lawfully
admitted to Canada for permanent residence. Because of his citizenship
application, he came to the attention of the CBSA and the immigration task
force. The Applicant was investigated and CBSA referred him under a section 44
report on February 12, 2014. As a result, CBSA issued an arrest warrant and
when the Applicant was arrested in February 2014, CBSA determined he was a
flight risk and detained him. At his admissibility hearing, the Board found the
Illinois provision for "attempted residential burglary" to be
equivalent to the Canadian criminal code provision for "attempt break and
enter". The Applicant testified that his role in the crime was that he was
sitting in a car outside a house that his companions were in the process of
breaking into. The Board determined that he was a foreign national inadmissible
for serious criminality and issued a deportation order for the Applicant.
6 The
FOSS notes indicate that the file relating to the Applicant's 1989 application
was destroyed in 2008 in the normal course of business. CIC has no further
records for the Applicant other than FOSS notes. The FOSS notes show that the
Applicant was sponsored by his father and accepted in principle for processing
of permanent resident status while in Canada with work authorization. In 1991,
the FOSS notes indicate that "AIP in process still". No further
remarks appear until February 2011 when he requested welfare and again in September
2012 when it is documented he requested welfare again.
7 The
FOSS notes show that the Applicant was eligible for a Pre-Removal Risk
Assessment ("PRRA") on April 10, 2014, but did not file an
application.
8 To
further his position he is a permanent resident he states:
· *
his dad picked up his PR
card in 1991;
· *
he never received a
refusal letter from CIC;
· *
he was issued a social
insurance number (beginning with the number 5 indicating his landed immigrant
status); and
· *
he has a Ontario Health
Card where his status is listed as "landed immigrant".
II. The Board's Decision on Equivalence
9 The
Board rendered an oral decision following the admissibility hearing and found
that the Applicant was inadmissible pursuant to section 36(1)(b) of the IRPA.
The Board found that while the Applicant claimed to be a PR of Canada, he was
unable to produce any objective evidence of his status. The Minister produced
an email from CBSA to CIC that showed there was no record of PR status or any
other lawful status in Canada for the Applicant. As well, the Respondent
provided the June 2013 rejection letter from CIC which indicated the
Applicant's lack of status.
10 The
Board noted that the Applicant pled guilty and was convicted of attempt
residential burglary on September 28, 1992. The Board concluded that there are
reasonable grounds to believe that he was convicted of the Illinois offence.
11 With
respect to equivalence, the Board recited the Illinois provision and section
24(1) (attempts) of the Canada Criminal Code, RSC 1985 c C-46 ("Code") and found the wording of the
attempt statutes to be "virtually identical". The Board noted they
both referred to intention, commission of an offence and for acts committed for
the purpose of carrying out that intention. The Board referred to section 463
of the Code, where there is a fourteen year sentence for an attempt of an
indictable offence punishable with life.
12 Finally,
the Board compared the provisions for residential burglary in Illinois and
"break and enter" section 348 of the Code in Canada. The Board
determined that both offences refer to a dwelling place or house, both refer to
breaking and/or entering, which is to enter without authority; both refer to
intention to commit the offence and found that the elements of the provisions
are equivalent. Section 348 is an indictable offence punishable by up to life
sentence. In sum, the Board found there are reasonable grounds to believe that
the Applicant is an inadmissible foreign national as contemplated by the IRPA
and issued a deportation order.
III. Issues
· A.
Is the Board's
equivalence analysis reasonable?
· B.
Should CIC be ordered to
process the 1989 application and grant the Applicant PR status?
IV. Analysis
· A.
Equivalence Analysis
· (1)
Standard of Review
13 The
standard of review for equivalence for the purpose of inadmissibility pursuant
to subsection 36(1)(b) of the IRPA is reasonableness (Abid
v Canada (Minister of Citizenship and Immigration), 2011
FC 164 ("Abid")).
Findings of equivalence are decisions of mixed fact and law and so attract
deference (Abid at para 11).
14 The
Applicant argues that inadmissibility findings based on facts of an offence
committed abroad are assessed on a reasonableness standard, but that the
equivalency analysis is a correctness standard because it is a pure question of
law. I disagree. The underlying act that constitutes the foreign offence is an
assessment of fact by the Board and the subsequent equivalence is an analysis
of mixed fact and law (Ulybin v Canada (Minister of
Citizenship and Immigration), 2013 FC 629 at 19 ("Ulybin")).
15 As
described by Madam Justice Snider in Ulybin at para 21:
· 21 How does the reasonableness standard apply to the analysis in
issue? It is important that the Officer carrying out the equivalency analysis
understand the elements of the comparable offence. A failure to address one of
the elements would make the analysis unreasonable. However, the Officer's
application of the facts to the Criminal Code elements is a matter for which
the Officer is owed deference by the Court. This exercise may lead to more than
one reasonable outcome, particularly when taking into account the highly factual determination of equivalency
· Emphasis added
16 There
is divergent case law where the equivalence analysis is characterized as a
question of law attracting a correctness review (Park v
Canada (Citizenship and Immigration), 2010 FC 782 at
12). However, other jurisprudence as listed above finds that it is a
reasonableness standard. I applied Madam Justice Snider's reasoning to use a
reasonableness standard in this case because of the fact-specific nature of the
equivalence analysis.
17 The
equivalency analysis may be conducted by one of three methods as described in Hill v Minister of Employment and Immigration,
[1987] F.C.J. No. 47 (QL):
· 1.
By comparison of the
precise wording of each statute through documents and if available, through
experts in foreign law in order to find the essential ingredients of the
offences;
· 2.
By examining the
evidence before the adjudicator of the foreign conviction to determine if the
essential elements of the Canadian offence were established in the foreign
proceeding or
· 3.
A combination of method
#1 and method #2
18 As
Mr. Justice Roy stated in Victor v Canada (Public Safety
and Emergency Preparedness), 2013 FC 979 at para 43, the
three methods are alternatives and there is no hierarchy between them. The
Board must have reasonable grounds to believe that certain facts have occurred
(s. 33, IRPA); "reasonable
grounds" refers to a standard that is something more than mere suspicion
but less than the balance of probabilities standard (Mugesera
v Canada (Citizenship and Immigration), 2005 SCC 40). It
is not necessary to compare all the general principles of criminal
responsibility; it is sufficient to examine and compare the two offences, not
the comparability of possible convictions consequently the equivalence analysis
does not attempt to re-try the person (Li v Canada
(Citizenship and Immigration), [1997] 1 FC 235 at para
19 ("Li")). It is
clearly the equivalence of the offence that is assessed, not the equivalence of
the law (Steward v Canada (Minister of Employment &
Immigration), [1988] 3 FC 452 (FCA); Ngo v Canada (Minister of Citizenship & Immigration), 2005 FC 609).
· (2)
Applicant's Submissions
-- equivalence
19 The
Applicant argues that the words of the statute are not virtually identical as
the Board described. At paragraph 11 of his submissions, the Applicant submits
that the Canadian attempts provision is broader. The differences argued by the
Applicant are outlined in the following chart:
20 The
Applicant also argues that the equivalence analysis between Illinois
"residential burglary" provision and the Canadian "residential
break and enter" provision are inaccurate and in error.
21 The
Applicant submitted that the Board was required to look into the facts
underlying the Illinois conviction to determine what actually transpired in
Illinois and if they constitute the essential elements of the Canadian offence.
The Applicant's position was that the Board was in error because she conducted
her equivalence assessment only the basis of the US conviction.
22 The
Applicant cites Brannson v Canada (Minister of
Employment and Immigration [1981] 2 FC 141 ("Brannson"), to demonstrate that there
must first be evidence that the essential ingredients of the Canadian provision
are included in the foreign offence and secondly there should be evidence that
the circumstances resulting in the charge, count, indictment or other document
to initiate the criminal proceeding would constitute an offence in Canada.
23 The
Applicant also relies on Lei v Canada (Solicitor
General), [1994] F.C.J. No. 222, where the court set
that decision aside because without evidence as to the circumstances that
resulted in the US conviction, no finding of equivalency could be made.
24 The
Applicant submits that the Board did not accept that during the commission of
the crime in Illinois, he stayed in his car while others broke a garage window.
The Applicant argues that the Board did not provide reasons why this version of
events was not accepted and that the failure or omission to consider the
Applicant's actions is fatal to the equivalency assessment. The Applicant
submits that his actions are in fact equivalent to the mischief section 430 of
the Code which is not an indictable offence.
· (3)
Applicant's Submissions
-- Rehabilitation
25 The
Applicant's position is that he should not have been reported as inadmissible
on grounds of serious criminality because his conviction was 21 years ago and
he completed his sentence at least 16 years ago. Subsection 36(3)(c) of the
IRPA provides that after a prescribed period, the foreign national or permanent
resident may satisfy the Minister that they are rehabilitated. The Applicant
does not argue that he qualifies for deemed rehabilitation.
26 The
Applicant submits that the Certified Tribunal Record contains no other evidence
that he was convicted of an offence other than the United States offence. The
Applicant submits that he told the Board about his rehabilitation by saying
"...I've been keeping my nose clean for so many years. I just try to do
good and comply with all laws". The Applicant submits that the Board
should have been satisfied that the Applicant was rehabilitated.
· (4)
Analysis
27 In
my view, the Board conducted the equivalence analysis with a valid United
States conviction, and evidence to support that the conviction occurred. The
Applicant submits that only meagre facts were established by the record during
the hearing and so with a very brief description of the events that led to the
conviction, it is impossible for the Board to understand what the elements of
the offence are. The standard, however, is that there must be
"...reasonable grounds to believe" that a conviction would occur in
Canada and it is not the Board's duty to re-try the crime with the precise
facts of the events leading to the conviction. The Board used the third method
described in Hill, above, where a
combination of comparing the wording of the provisions and evidence of the
facts of the conviction to determine that there was equivalence.
28 The
key point is that it is not necessary for the Board to determine whether there
was sufficient evidence for an actual conviction in Canada. It is whether there are reasonable grounds
to believe that the Applicant would be convicted if the
same act were committed in Canada. Consequently, the equivalence is between the
provisions and not the comparability of possible convictions. Furthermore, the
equivalence analysis allows for different statutory wording (Brannson, above).
29 From
my reading of the Board's decision, method three from Hill was used to find equivalence.
30 The
Board starts with a determination that the Applicant was convicted in the
United States of the Illinois offence. The Board uses the evidence of:
· *
his guilty plea,
· *
that a conviction is
registered in the National Crime Information Centre,
· *
that he has fingerprints
matching an FBI database for convictions; and
· *
that a certified
statement of conviction from Illinois establishes that he was convicted.
31 This
is the Board first using method two to examine the evidence adduced before her
to establish the Illinois conviction.
32 Then,
the Board switched to method one and extracted the necessary elements of both
the Canadian and Illinois provisions, and found the necessary elements were
equivalent. Consequently, the Board ultimately used method three to find
equivalence because she used a combination of both methods.
33 The
Board found the equivalent essential elements between the attempt provisions to
be (1) intent; (2) to commit offence; and (3) acts for the purpose of
committing an offence. This is a reasonable extraction of elements from the
provisions. The Board found the equivalent essential elements of the
burglary/break and enter provision to be (1) dwelling house (same as dwelling
place); (2) breaking and/or entering to be the same as enter without authority;
(3) intention to commit offence; (4) theft or felony equivalent to indictable
offence.
34 I
disagree with the Applicant's argument that "break and enter" is not
the same as "enter without authority" because it is a distinction
without a difference. The Board recognized that the wording was different but
that the purpose and meaning of the words was the same. As described in Li, above at paragraph 18, the words must be similar or involve the same criteria -- there
is no requirement that the words be identical in order to find equivalence:
· I believe that it would be most consistent with the purposes of the
statute, and not inconsistent with the jurisprudence of this Court, to conclude
that what equivalency of offences requires is essentially
the similarity of definitions of offences. A definition
is similar if it involves similar criteria for establishing that an offence has occurred, whether those
criteria are manifested in "elements" (in the narrow sense) or
"defences" in the two sets of laws. In my view the definition of an
offence involves the elements and defences particular to that offence, or
perhaps to that class of offences.
35 The
Applicant's argument outlined in the chart above attempts to suggest that the
Canadian provision is not equivalent to the Illinois one, but what he has
really demonstrated is that the Canadian offence is broader, therefore, I see
that it necessarily includes the acts that would constitute an offence in
Illinois. Further, the Board found and extracted the essential ingredients of
each offence and then considered whether they were equivalent. I find the
Board's analysis is reasonable. Finally, for the Court to undertake a discrete
analysis of the exact wording of the provisions and do its own equivalence
analysis as the Applicant does in his memoranda would end up being a
correctness review rather than a reasonableness review.
36 The
Applicant argues that in Li, the
decision of equivalence was set aside because without evidence as to the
circumstances of the United States conviction, there could be no finding of
equivalency. Lei can very easily
distinguished because in that case, the court found the Canadian offence was
narrower and as such, the adjudicator would have to go beyond the words of the
statute and the acts would have to be analyzed. In the case at bar, the
reasonableness of the equivalence is what is assessed at the Federal Court and
I determined that the equivalence was reasonable. As such, the underlying facts
do not need to be analyzed as suggested by the Applicant. The reliance on Ngo, above, does not stand because in that
case, the board did not undertake any equivalency analysis between the specific
wording of the statutes whereas here, the Board did exactly that.
37 Similarly,
the Applicant's reliance on Brannson is also faulty because the Canadian provision was narrower in that
case and so the actions leading to the charge had to be analysed to determine
if they would constitute a crime in Canada. Because of the difference in scope
between the two provisions, the court found that the board in Bransson was obligated to investigate if the
actions in the foreign jurisdiction would be captured by the Canadian
provision.
38 In
his Further Memorandum of Argument, the Applicant strongly argues that the
Board was required to look into the facts of the United States conviction in
order to find equivalence. However, I just repeat that the Board is not
required to re-try the Applicant to see if he would be convicted in Canada. The
bar is simply not that high -- the Board only needs to find reasonable grounds
to believe that such an act would lead to a conviction in Canada. Li does not allow for the Board to conduct a
"mini-trial" but that the Board must compare the provisions, not the
chance of conviction in Canada. Brannson also states that the "essential ingredients, or elements
constituting the Canadian offence" must be assessed for equivalence to the
elements of the foreign provision, not necessarily the facts constituting the
offence. Brannson at paragraph 38
states:
· [I]n determining whether the offence committed abroad would be an
offence in Canada under a particular Canadian statutory provision, it would be
appropriate to proceed with this in mind: Whatever the names given the offences
or the words used in defining them, one must determine the essential elements
of each and be satisfied that these essential elements correspond.
39 The
Applicant's argument that his actions are more in line with mischief and that
the Crown would have proceeded in such a way is also an inappropriate
consideration. The Board is not required to guess what the Crown would have
done in Canada. The Board's role is to compare the provisions to determine if
there are reasonable grounds to believe a conviction would have occurred.
40 In
light of the above, I find that the Board reasonably assessed the equivalence
between the Canadian and US provision. The Board conducted a thorough analysis
of the provisions and analysed their wording to find them equivalent.
41 In
regards to rehabilitation, the Applicant is required to complete a
rehabilitation application before the Board can properly consider if he is
rehabilitated. The onus is again on the Applicant to submit such an application
and then ensure that an approved application is before the Board. This is
described by Mr. Justice Shore in Akanmu Alabi v Canada
(Public Safety and Emergency Preparedness), 2008 FC 370:
· [36] Mr. Akanmu Alabi's assertion must fail for a number of reasons.
The onus is on Mr. Akanmu Alabi to establish that the Minister has deemed him
to be rehabilitated. This would necessarily involve adducing evidence before
the Immigration Division to establish that fact.
· [37] Secondly, the Immigration Division may only assess the evidence
that is put before it. Unless evidence of the Minister's positive finding of
rehabilitation is adduced, the Immigration Division cannot assess whether
paragraph 36(3)(c) of the IRPA applies. If he was indeed determined to be
rehabilitated by the Minister, it was incumbent on Mr. Akanmu Alabi to adduce
that evidence before the Immigration Division Member.
· [38] Mr. Akanmu Alabi cannot be considered rehabilitated without
adducing evidence that such a finding was made. The Immigration Division cannot
be faulted for expecting the he adduce such evidence.
42 At
the hearing I asked the Respondent to provide the processing times for a
rehabilitation application and it was provided as approximately 12 months.
43 No
rehabilitation application had been filed at the time of the hearing. I find it
was reasonable for the Board not to consider whether the Applicant was
rehabilitated.
· B.
Should CIC be Ordered to
Process the 1989 Application and Grant the Applicant PR Status?
44 The
Applicant makes this application seeking declaratory relief against the alleged
"unwillingness" of CIC to finalize the Applicant's 1989 application
for PR status. In the alternative, the Applicant seeks a mandamus order
compelling CIC to grant him PR status or alternatively, to compel CIC to complete
the processing of the 1989 application within a specific time frame. The
Applicant seeks costs on a partial-indemnity basis for the long delay in
processing the application. There was no additional communication between the
Applicant and CIC following the submission of the 1989 application and the 1991
FOSS notes that indicate that it is still in process.
45 The
Applicant does not dispute that he could not be landed at any point after the
coming into force of the IRPA because CIC could not be satisfied that he is
inadmissible since his medical, criminal and security clearance are mostly
likely expired. The Applicant instead argues that he met all the statutory
requirements of the former Immigration Act and its Regulations as
of 1990 or 1991, and CIC refused or failed to land the Applicant between 1989
and 1993 (the year he was convicted in the US).
46 The
Applicant submits that the criteria for issuing a writ of mandamus has been met
(Apotex Inc v Canada (Attorney General), [1994] 1 FC 742 at 55; Conille v Canada
(Citizenship and Immigration), [1999] 2 FC 33 at 8). The
Criterias are:
· *
There is a public legal
duty to the applicant to act
· *
The duty must be owed to
the applicant
· *
There is a clear right
to the performance of that duty, in particular: (a) the applicant has satisfied
all conditions precedent giving rise to the duty; (b) there was a prior demand
for performance of the duty, a reasonable time to comply with the demand, and a
subsequent refusal which can be either expressed or implied, eg unreasonable
delay; and
· *
There is no other
adequate remedy.
47 Both
counsel presented very compelling and excellent arguments. While it is somewhat
of an enigma regarding what really happened to the 1989 application, the onus
is on the Applicant to prove his status. The evidence before the Board does not
support that he was ever given PR status even though his application was
processed through stage one. Making the determination of what happened more
difficult, the Applicant chose not to provide evidence for some of the gaps in
time periods. Further complicating the situation is that there is a sparse CIC
file since the file was destroyed as per the normal course of business in 2008
and remaining are only the FOSS notes.
48 Upon
judicial review of two of his detention hearings, Mr. Justice Hughes wrote in Moscicki v Canada (Citizenship and Immigration),
2014 FC 993 at para 6 "...while the Applicant has been in detention for some
eight months the only reason why he has not yet been removed is his refusal to
co-operate with the Polish authorities. He is the author of his own continued
detention."
49 I
echo Mr. Justice Hughes and say that the Applicant is the author of his own
misfortune regarding his status in Canada. I have some sympathy for the
Applicant as the sponsorship happened when he was a young person and his young
age may account for not following up with CIC. However, when the Applicant
returned to Canada in 2008, he should have understood that he did not have PR
status when he only received a 6 month TRV. All of the documents from the State
of Illinois say he is a citizen of Poland and that is where he was deported to
after serving his sentence. So again the fact he was not a PR in Canada should
have been clear to him when he entered the American legal system in 1992.
50 The
Applicant argues that he has met these requirements for a mandamus order: (1)
CIC has a public legal duty to process his permanent residence application and
that duty is found in subsection 5(2) of the former Immigration
Act and subsection 11(1) of the IRPA which imposes a
obligation to grant landing to applications who meet the relevant statutory
requirements; (2) once CIC determined the Applicant was a dependent son under
subsection 2(1) of the former Regulations, CIC was obliged to assess whether landing could be granted; (3) the
Applicant submitted a complete application, supporting documents and processing
fee which required a CIC officer to perform his or her duty and (4) the
application has been in process for almost 25 years which is an unreasonable
delay. This is sufficient for mandamus order. But for the CIC's delay, the
Applicant submits that he would have been landed as early as 1990 or 1991.
51 The
Applicant states that the evidence is conflicting about his status in that CIC
has confirmed they have no record of his landing however Service Canada
indicates he is a landed immigrant and there is no decision confirming refusal
of his application. The Applicant points particularly to the Service Canada
evidence which according to Toussaint v Canada (Attorney
General), 2011 FCA 213 at 40, Service Canada is
prohibited from approving medical coverage to foreign nationals. The Applicant
submits that in absence of contrary evidence, it should be deemed that Service
Canada was diligent when verifying the Applicant's status prior to approving
his renewal application in March 2013.
52 The
Federal Court has jurisdiction to grant a writ of mandamus pursuant to the Federal Courts Act, RSC 1985, c F-7, section
18.1(3). That order may be made if the test from Apotex, above is satisfied. Madam Justice Gagné in Magalong
v Canada (Citizenship and Immigration), 2014 FC 966,
described Apotex as:
· [21] The writ of mandamus is a discretionary equitable remedy. It
"lies to compel the performance of a public legal duty which a public
authority refuses or neglects to perform although duly called upon to do
so" (Dragan v Canada (Minister of Citizenship and
Immigration), 2003 FCT 211, [2003] 4 FC 189 at para
38).
· [22] The parties agree that the following criteria must be satisfied,
as set forth in Apotex Inc v Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 FC 742, aff'd [1994] 3 SCR 1100
at para 45, before the Court can issue a writ of mandamus:
· 1.
there must be a public
duty to act under the circumstances;
· 2.
the duty must be owed to
the applicant;
· 3.
there must be a clear
right to performance of that duty, in particular:
· (a)
the applicant has
satisfied all conditions precedent giving rise to the duty;
· (b)
there was (i) a prior
demand for performance of the duty; (ii) a reasonable time to comply with the
demand unless refused outright; and (iii) a subsequent refusal which can be
either expressed or implied, e.g. unreasonable delay;
· 4.
no other adequate remedy
is available to the applicant;
· 5.
the order sought must
have some practical effect;
· 6.
in the exercise of its
discretion, the Court must find no equitable bar to the relief sought;
and,
· 7.
on a balance of
convenience, an order of mandamus should issue.
53 In
Singh v Canada (Citizenship and Immigration), 2010 FC 757 ("Singh"), following the Apotex analysis, Mr. Justice de Montigny found that CIC had a public legal
duty to process a permanent residence application in an analogous case:
· [50] ...It is clear that CIC has a public legal duty to process the
Applicant's permanent residence application. Section 5(2) of the former Immigration Act imposed on CIC a clear
obligation to grant landing to an applicant for permanent residence who meets
the relevant statutory requirements, and the same is true by virtue of section
11(1) of IRPA: see, for example, Dragan, above, at para. 40; Vaziri v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1159,
[2006] F.C.J. No. 1458 at para. 41.
54 In
Singh, above, the facts are
similar as are the statutory provisions: the applicant in that case advanced to
stage two processing in order to determine whether he met the statutory
requirements for landing but his application was not approved because CIC
determined that a photocopy of his passport was not sufficient to meet the
requirements. Criminal charges were laid in the intervening years and the
applicant never obtained PR status. Mr. Justice de Montigny found that once the
applicant submitted a completed application with required supporting documents
and paid the fee, he had a right to a performance of the duty described above.
In the ten years prior to the charges being laid, the Court found that the
applicant was entitled to PR status and consequently issued a mandamus order.
55 While
on its face, Singh is analogous,
the crucial documentary evidence of the 1989 file is destroyed and the facts
are far from identical as the Applicant argues. The Applicant here has
complained of a 25 year delay and under the same provisions of the Act in force
in 1993 as in Singh, also is owed
a duty by the CIC to complete the application since the FOSS notes indicate
that the application was being processed. Unfortunately, the Applicant cannot
establish that he has satisfied all the conditions precedent that give rise to
that duty as required from Apotex.
56 The
Respondent rightly argues that there is no evidence to prove that the Applicant
met the requirements of permanent residence or that the delay is not his own
fault.
57 Unlike
Singh, the evidence that may
establish that the Applicant met the statutory requirements is ambiguous.
Further, in Singh, the applicant
and his counsel repeatedly contacted CIC for updates and there was an actual
file date and file entry indicating that he satisfied all the statutory
requirements.
58 A
further complication arises however because it is the Respondent who is
responsible for the destruction of the file that would demonstrate whether they
failed to act. Had the file been intact and complete, considering an order of
mandamus would be appropriate however without that evidence it is impossible to
process the 1989 PR application.
59 In
Canada (Minister of Citizenship and Immigration) v
Obodzinsky, [2000] F.C.J. No. 1675, the issue of
destruction of immigration files was raised. Mr. Justice Marc Nadon found that
the routine destruction of immigration files is reasonable and does not
constitute negligence on the part of the government. Further, the destruction
of the file impacts both parties because the existence of the file is
determinative for both parties.
60 The
Respondent has the ability to fill in some of the gaps in the time period that
the file does not cover. The CIC file shows he met the stage one requirements
and was given a work permit (October 18, 1989 to February 5, 1992) while being
sponsored by his father when he arrived as a 17 year old on October 18, 1989.
He provided a SIN and health card that indicates he was a PR, but I do not find
that determinative as he was a child and being sponsored by his father and I
have no evidence that these were not given on the basis of being a sponsored
child. I have no evidence showing that he was a PR and had completed stage two,
The FOSS notes shows that on February 5, 1991, the application was in process
and then nothing else. So there is a three year period from October 1989 until
the conviction on January 22, 1993 where there is no evidence.
61 I
do not have evidence of exactly when he served his sentence or when he was
deported from the United States. I have evidence he was in Chicago on 08/12/93
when he was released. But, there is no evidence of his whereabouts until he
arrived back in Canada on August 9, 2008 with a Polish passport and was issued
a six month temporary resident visa in order to be allowed entry into Canada.
This passport was not produced as evidence.
62 I
have no evidence whether he worked or where he worked during the missing time
periods or for that matter where he resided in the world. The Applicant has
chosen not to provide evidence to assist. While the Applicant stated in his
affidavit and in written argument that he has "over twenty years of
residence in Canada", there is no evidence to support that such as tax
returns or his proof of where he resided. We do know he applied for welfare on
two occasions from the FOSS notes.
63 I
understand the Applicant's arguments and do believe that when he was 17 years
old that he knew the process was initiated and had the documentation to
continue on with his life. He probably thought he had permanent resident status
but I see no evidence that he progressed beyond stage one. In this case, there
is no "clear right" to granting PR status and it is far from obvious
that the Applicant satisfied all the conditions precedent giving rise to the
duty to grant PR status.
64 I
am not prepared to grant any of the relief sought by the Applicant which was:
· *
Declaratory relief that
in 1990 CIC failed to perform legal duties regarding the Applicant's PR
application;
· *
Declare is the
Applicant's status is in principle for a PR;
· *
Declare both the
deportation and exclusion orders (removal orders) stayed pursuant to s. 233 of
the Immigration and Refugee Protection Regulations because of public policy until CIC grants PR status;
· *
Issue a writ of mandamus
to compel CIC to process the PR application within 90 days under stage two
since stage one (approval in principle) is already complete.
65 Based
on what is before the Court, I do not see there is evidence to compel CIC to
grant Permanent Residence.
66 The
Applications are dismissed and no special costs are ordered as requested. No
question is certified.
· THIS COURT'S JUDGMENT is that:
· 1.
The applications are
dismissed;
· 2.
No costs are
ordered;
· 3.
No question is
certified.
McVEIGH J.
