ALBERTO GIUSEPPE FERRARO Applicant v. THE MINISTER OF CITIZENSHIP AND, 2011 FC 801

Federal Court Cour fédérale Date: 20110630 Docket: IMM-4643-10 Citation: 2011 FC 801 Ottawa, Ontario , June 30, 2011 PRESENT: The Honourable Justice Johanne Gauthier BETWEEN: ALBERTO GIUSEPPE FERRARO Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER [ 1 ] Mr. Alberto Giuseppe Ferraro seeks judicial review of the decision denying his requests for a temporary resident permit ( Immigration and Refugee Protection Act , SC 2001, c 27, s 24 [ IRPA ]) and for humanitarian and compassionate consideration (H&

C) to overcome inadmissibility for serious criminality ( IRPA , s 25). [ 2 ] Mr. Ferraro is a citizen of Ecuador , who immigrated to Canada when he was nine years old and has lived in Canada continuously ever since. His family lives in Canada , including his four children [1] and a stepson, [2] his widowed father, his sister, his aunts, uncles and cousins. At present, he lives with his sick father and his current common-law wife, his stepson and their new baby ( Savannah ). He is the owner of two luxury car businesses in Toronto , one of which was opened in February 2009.

He has been very successful in his business matters and in one of the written submissions submitted on his behalf, his counsel describes him as financially secure. [ 3 ] Mr. Ferraro pled guilty to two counts of trafficking a controlled substance and possession of stolen property under $5,000 in September 2001. He received concurrent three-year sentences and was released after seven months on accelerated parole. A deportation order was issued against him in 2002. [ 4 ] Since then, Mr.

Ferraro has been the subject of various charges (in 2003, 2007 and 2009) related to drugs [3] which had all been either stayed or withdrawn by the time the decision under review was rendered.

[5] He filed his request for a temporary resident permit and for an H&C in May 2006 and, for reasons that have not totally beenexplained,[4] the decision was only made on June 18, 2010 after he had filed several updated submissions and evidence.[5] [6] Mr. Ferraro raises several issues with the decision, including issues of procedural fairness. First, he said that he should havebeen granted an interview by the decision-maker, but after discussion at the hearing, it was conceded that this argument was not inaccordance with the law as it stands. [7] Second, Mr.

Ferraro argues that the decision-maker exhibited a reasonable apprehension of bias which permeated her wholeapproach to his case. This allegation of bias arose from an e-mail exchange between the respondent Ministry and Canada Border Services(CBSA) officials. Also, according to the applicant, the decision-maker ignored the fact that he only served seven months of his three-year sentence and was released on accelerated parole because of his good behaviour. For the applicant, this was an important factor toconsider with respect to his rehabilitation. [8] Mr.

Ferraro also put a great deal of emphasis on the fact that the decision-maker appears to have relied on an outdatedRCMP printout in stating that the December 2009 charges were still awaiting disposition, whereas Exhibit P of the Applicant’s Recordclearly demonstrates that these charges were stayed (although counsel was not present at the proceeding and afterwards sought, withoutsuccess, to have these charges withdrawn).

The respondent answered that in his written submissions to the decision-maker, theapplicant’s counsel did not even refer to the disposition of these charges, even though the submissions were made a month after thecharges were stayed.[6] That said, and in any event, the weight given to these charges, if any, was minimal. [9] Also, the applicant argues that the decision-maker’s reliance upon criminal charges, particularly those from 2003 whichwere later withdrawn, was not proper since withdrawn charges are not evidence of criminality. [10] Third, Mr.

Ferraro argues that the decision-maker’s finding that there was little before her to prove Mr. Ferraro wasrehabilitated was unreasonable as he had submitted extensive evidence of rehabilitation, including, as mentioned, that he had beenreleased on accelerated parole after seven months due to his good behaviour, that he participated in a program called Choices, and thathis business sponsors children’s charities, teams and churches. That said, it is not clear that these sponsorships were part of hisrehabilitation as opposed to his ongoing role in the community since Mr.

Ferraro only notes that these sponsorships were done “in pastand present” (Certified Record at 47).[7] [11] Fourth, Mr. Ferraro argues that the decision-maker’s assessment regarding the best interests of his children was flawed. Hismain submission in this respect concerned the decision-maker’s statement that were Mr. Ferraro to be removed “each [child] has anotherparent remaining in Canada who could continue to care for [him or her]” and that in the case of his step-son, Rio, there were two parents– his mother and biological father.

According to the applicant, this particular statement is ridiculous since Rio’s biological father hadallegedly been abusive, as was noted in a letter from the applicant’s common-law wife (Rio’s mother).[8] The respondent disagreed andsubmitted that the best interests of the child analysis was reasonable, especially since a different letter from Mr. Ferraro’s wife confirmedthat Rio sees his biological father on weekends and some holidays,[9] suggesting he is now a fit parent. [12] Fifth, although Mr.

Ferraro asserts that it was unreasonable for the decision-maker to have considered that he could bedeported to Italy instead of Ecuador, this was not an argument he insisted upon at the hearing before me, given that Italy had been raisedas a potential country of destination by the applicant himself[10] and the decision-maker clearly expressed no views in that respect. Shesimply attempted to cover in her reasons all the representations made by Mr.

Ferraro and his counsel. [13] Finally, the applicant took issue with the fact that the decision-maker failed to perform a separate analysis regarding hisrequest for a temporary resident permit. [14] The parties are agreed that questions involving procedural fairness, including the allegation of a reasonable apprehension ofbias, are reviewable on a correctness standard (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 43 [Khosa];Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]; Ahmad v Canada (Minister of Citizenship and Immigration), 2008 FC 646 atparagraph 14).

As to the validity of the overall decision made under the H&C provision of IRPA, this is generally subject to areasonableness standard (Dunsmuir, above, at paragraphs 51, 53; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817; Kinsana v Canada (Minister of Citizenship and Immigration), 2008 FC 307, aff’d FCA 189 atparagraph 12 [Kinsana]). The decision-maker’s assessment of the best interests of the children attracts a reasonableness standard(Kinsana, above).

Similarly, her assessment of and weighing of the evidence regarding the applicant’s criminality, rehabilitation andreturn to Ecuador or Italy is governed by the reasonableness standard (Khosa, above, at paragraph 46; Katwaru v Canada (Minister ofCitizenship and Immigration), 2010 FC 1277 at paragraph 30). Whether or not we consider the decision-maker’s failure to give separate

reasons for the temporary resident permit application as an issue of procedural fairness (as was done in Voluntad v Canada (Minister ofCitizenship and Immigration), 2008 FC 1361 [Voluntad]) or an error of law calling for a correctness standard or under the overallreasonableness standard, this does not impact the resulting decision not to intervene in this respect. [15] A high burden rests on an applicant who seeks to establish that there was a reasonable apprehension of bias (Zambrano vCanada (Minister of Citizenship and Immigration), 2008 FC 481 at paragraph 53).

The e-mail exchange referred to by the applicant doesnot indicate a nefarious motive on the part of the respondent and the Court cannot reasonably read into these e-mails what the applicantwishes to infer. An informed person viewing the matter realistically and practically would think that the respondent was simply trying tomove Mr. Ferraro’s file along in the process, a request Mr.

Ferraro had himself made on several occasions.[11] [16] Turning now to the applicant’s submission that the decision-maker did not properly consider that he was released onaccelerated parole and made an unreasonable finding in respect of his rehabilitation, the Court notes that Mr.

Ferraro’s submissionsregarding his rehabilitation were indeed limited to what has already been described as well as to statements from his counsel (notsupported by affidavits) that he no longer associates with persons related to his criminal convictions, is a changed man as evidenced bysuccessful businesses and is involved with his family.[12] In her reasons, the decision-maker expressly refers to Mr. Ferraro’s workrecord, the sponsorships, the Choices program and his business and personal relationships.

She specifically refers to the fact that he wasreleased from custody on accelerated parole after serving seven months on the first page of her decision dealing with the background aswell as on page 8 of the Certified Record where she expressly quotes from a written statement from the applicant himself explaining howhe had made an error in judgment, how he used his time in prison to upgrade his education and how he benefited from an acceleratedparole and took this opportunity to enrol in the Choices program and how he has not been convicted of any other offence since the 2001conviction.

She also refers to the said accelerated parole by quoting an older statutory declaration from the applicant on the same page. [17] There is a presumption that the decision-maker has considered all the evidence before her.

This presumption will only berebutted where the evidence not discussed has high probative value and is relevant to an issue at the core of the claim (Florea v Canada(Minister of Employment and Immigration), [1993] FCJ No 598 (CA); Cepeda-Gutierrez v Canada (Minister of Citizenship andImmigration), (FC), [1998] FCJ No 1425, 157 FTR 35 at para 17; as further explained in Ozdemir v Canada (Ministerof Citizenship and Immigration), 2001 FCA 331 at paras 9-11).

In the particular circumstances of this case, I am not prepared to concludesimply because the decision-maker does not repeat her reference to the accelerated parole on page 10 of the Certified Record that she hasfailed to consider this point in her assessment of Mr. Ferraro’s rehabilitation. [18] I am not satisfied that she failed to weigh all the evidence provided before reaching her conclusion. As she noted, she alsoconsidered his relationship at the time and concluded that in 2001 he was already 39 years old and that no argument could be made thathe was “an impetuous youth who ‘got in with the wrong crowd’”.

At that point in his life, he already had children of his own and wasrunning a business which had been established for many years already and was presumably successful. His only motivation thusappeared to have been personal gain.

In the context of her determination on the nature of the applicant’s criminality,[13] the conclusionshe reached was certainly one of the outcomes that was justifiable on the facts and the law of this case. [19] The decision-maker may have overlooked the fact that the 2009 charges were stayed, but this error was not material,especially since, as noted by the respondent, the applicant’s submissions to the decision-maker did not even mention that these chargeshad been stayed a month before.[14] The Court cannot ask the decision-maker to provide greater explanation in her reasons than thatwhich the applicant submitted, especially since in H&C applications, the applicant bears the burden of adducing proof of any assertionon which he relies (Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38). [20] At the hearing, the central debate concerned the issue of the decision-maker’s reliance on withdrawn charges, particularlythose from 2003.

Counsel for the applicant submitted that according to the Federal Court of Appeal in Sittampalam v Canada (Ministerof Citizenship and Immigration), 2006 FCA 326, withdrawn or dismissed charges cannot be used as evidence of an individual’scriminality. This argument is also supported by Thuraisingam v Canada (Minister of Citizenship and Immigration), 2004 FC 607[Thuraisingam], where Justice Mactavish found that “a distinction must be drawn between reliance on the fact that someone has beencharged with a criminal offense, and reliance on the evidence that underlies the charges in question” (para 35).

In Thuraisingam, theapplicant noted, there was external evidence underlying the charges, including wire-tap evidence and sworn affidavits from a policeofficer and a witness, whereas, the withdrawn charges in his case were only detailed by a CPIC record (including a record of convictionsand an arrest record) and a

summary by the CBSA. The applicant also relied upon Bain v Rodrigue, 2004 BCPC 259, where it was foundthat a record of arrest does not have the reliability necessary to be considered admissible in any proceedings. [21] While the applicant’s submissions on the law are correct, the Court cannot agree that the decision-maker’s analysis in respectof the withdrawn charges was unreasonable. This is not a situation where the decision-maker used charges, in and of themselves, asevidence of Mr. Ferraro’s criminality.

Here, the decision-maker only took note of the physical evidence found at the scene of Mr.Ferraro’s business premises at the time of the seizure, regardless of who may have been involved or responsible. She indicated herconcern as to the quantities of drugs and weapons found and seized. The underlying evidence relied upon by the decision-maker wasbased on an inventory of items seized as detailed in the police report, evidence which is concrete and can be distinguished from the

allegations of involvement in criminal activities which were the subject of Thuraisingam . In his voluminous and numerous submissions, and despite the fact that he deals at length with his later criminal charges, Mr. Ferraro never contested the fact that physical evidence was recovered from his business premises in 2003. [15] In the particular circumstances, it was within the decision-maker’s discretion to consider the portion of the incident report that relates to physical seizure as credible.

In any event, in the end she notes that she gives this factor little weight and, in fact, that in the final analysis, without reference to the numerous later charges, in her opinion it was the applicant’s actual convictions in 2001 that were determinative of the application as illustrated by her comments at page 10 of the Certified Record. [ 22 ] Similarly, the applicant’s argument that the decision-maker failed to assess properly the best interests of his children must fail.

The recent jurisprudence on this issue was summarized by Justice Michel Shore in Khoja v Canada (Minister of Citizenship and Immigration), 2010 FC 142 , who concluded that the best interests of the child is only one factor to be weighed by H&C decision-makers (para 43). It is not necessarily conclusive of the H&C request. [ 23 ] The decision-maker clearly considered the particular circumstances of each child separately, including letters from them and their mothers. She noted that Mr.

Ferraro is indeed an active participant in the lives of his then three youngest children, despite the fact that he is neither the custodial parent of Victoria and Damian, nor Rio’s biological father. There is little doubt that she was alert, alive and sensitive to the best interests of the children, especially when she confirms, in her conclusions, that they are all strongly attached to their father. She weighed this factor in favour of granting the exceptional privilege sought by the applicant.

I see no reason to intervene in this portion of the decision. [ 24 ] Although the decision is seen as harsh and will have significant impacts on the applicant, his family, and employees, the decision-maker’s reasoning is cogent and well-balanced, meeting the requirements of justification, transparency and intelligibility ( Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 ).

The decision-maker had to balance not only the best interests of the children and the general principle of reunification and maintenance of the family unit, but also the clear objective of the legislature to remove criminals from Canada ( Medovarski v Canada (Minister of Citizenship and Immigration ), 2005 SCC 51 at para 10 ; Ramnanan v Canada (Minister of Citizenship and Immigration), 2008 FC 404 at paras 2 , 46-47 ).

In that context, the overall decision falls within the range of possible, acceptable outcomes defensible in respect of the facts and the law and the Court cannot intervene to substitute its own opinion for that of the decision-maker. [ 25 ] There was also no error with respect to rejection of the applicant’s request for a temporary resident permit without a distinct analysis. In effect, given that Mr.

Ferraro’s request was clearly based on the same grounds as those of his H&C application, it was proper for the decision-maker to simply refer to her same analysis ( Voluntad , above). [ 26 ] T he parties did not seek certification of any question and upon determining that this case turns on its own facts, no question will be certified. [ 27 ] The application is dismissed. ORDER THIS COURT ORDERS that the application is dismissed. “Johanne Gauthier” Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: IMM-4643-10 STYLE OF CAUSE: ALBERTO GIUSEPPE FERRARO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto , Ontario DATE OF HEARING: May 19, 2011 REASONS FOR ORDER: GAUTHIER J. DATED: June 30, 2011 APPEARANCES : Mr. Mario Bellissimo Ms. Erin Roth FOR THE APPLICANT Mr. Jamie Todd Ms. Mahan Keramati FOR THE RESPONDENT SOLICITORS OF RECORD : Ormston, Bellissimo, Rotenberg Toronto, Ontario FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Toronto , Ontario FOR THE RESPONDENT