PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Jakub Kowalczyk (the “Applicant”) seeks judicial review of the decision of a Designated Immigration Officer (the “Officer”), dated May 1, 2006. In that decision, his application for permanent residence pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the “Act”), on humanitarian and compassionate (“H&C”) grounds was rejected.
[2] The Applicant is a citizen of Poland. He came to Canada in October 2000. Shortly thereafter he submitted a Convention refugee claim. The claim was denied by a decision made on October 24, 2002.
[3] The Applicant married a Canadian citizen and on November 11, 2002, he submitted an application for permanent residence on H&C grounds. He also subsequently applied for permanent residence pursuant to the Spouse or Common-Law Partner in Canada Class process. By letter dated May 1, 2006, the Department of Citizenship and Immigration advised the Applicant that he was ineligible for consideration as a member of that class and that his application would be considered on H&C grounds. The Applicant accordingly made submissions in support of the positive exercise of discretion on H&C grounds, and in so doing acknowledged that he had been convicted of certain property-related offences in Poland. The conviction was entered in Poland after his departure from that country and although a sentence of 18 months was imposed, it was suspended by the Polish Court on November 30, 2005 for a period of six months.
[4] The Officer considered the positive and negative factors with respect to the Applicant’s H&C application. Reference was made to the criminal conviction and the following comments appear in the Officer’s notes:
… At time of signing application in Nov2002 said no to charges and or convictions
Subjects states not aware of sentencing which occurred in 2001 until Both subject’s and spouses income required to deal with financial obligations
In Jan 2005 admitted to conviction in 2001
Subject must have been aware of charges as he was represented in court in Sept 27, 2000. He committed the crime in Dec 15 1999 …
… A greater determining factor for me was subject’s criminal conviction overseas, although all the reference letters state that it was a childish mistake and his future should not be affected so negatively because of it, I am of the opinion that subject continues to make mistakes. In his first application dated November 2002, subject stated was not convicted and had no charges. According to the court record provided by subject in a submission dated 2005, it is clear subject was at least aware he was charged as the incident happened in Dec 1999 and the first court appearance took place prior to his arrival in 2000. It is not clear when subject became aware of his conviction but rather than dealing with it, subject keeps postponing the execution of the sentence. Canada is not to be used as a hiding ground for people convicted of criminal offences.
I am satisfied based on all the information provided that subject’s lack of dealing with his criminal conviction in Poland outweighs his wanting to remain in Canada and not being separated from his spouse. I am not satisfied that undue and undeserved nor disproportionate hardship would be experienced by either of them nor am I willing to recommend a permit to someone who has not complied with sentencing. …
[5] Both the Applicant and the Minister of Citizenship and Immigration (the “Respondent”) agree that the applicable standard of review here is reasonableness, having regard to the discretionary nature of the decision at issue. However, the Applicant argues that it was an improper exercise of discretion for the Officer to focus on the criminal conviction. He also argues that the Officer misstated the evidence, in particular by making the observation that he had been represented by counsel in the first proceeding before the Polish Court when there is no evidence to support that finding.
[6] For her part, the Respondent submits that the Officer committed no reviewable error in exercising her discretion. At the same time however the Respondent acknowledges that there is no evidence in the record to support the Officer’s finding with respect to the question of legal representation before the Polish Court in 2000.
[7] I agree with the parties that the decision at issue required the exercise of discretion by the Officer. However, the problem is less with the exercise of discretion than with the Officer’s factual findings that preceded the exercise of discretion.
[8] In my opinion, the Officer erred in finding that the Applicant had legal representation in the first proceeding before the Polish Court. This factual finding was made in the absence of evidence and appears to have contributed to the Officer’s conclusion that the Applicant was aware of his conviction prior to disclosing it to Canadian authorities. Ultimately, the Officer’s flawed factual findings may have negatively affected the Officer’s subsequent exercise of discretion.
[9] In the result, this application for judicial review is allowed and the matter is remitted to another officer for reassessment. Counsel advised that there is no question for certification arising.
ORDER
The application is allowed and the matter is remitted to another officer for redetermination. There is no question for certification arising.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2686-06
STYLE OF CAUSE: Jakub Kowalczyk and the Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 25, 2007
APPEARANCES:
|
Milan Tomasevic |
FOR THE APPLICANT |
|
David Joseph |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Milan Tomasevic |
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |