Sunday, February 19, 2012

Hadad—considering positive factors

Hadad v. Canada (Citizenship, Immigration and Multiculturalism), 2011 FC 1503

Judge: Justice O’Keefe; Date heard: October 6, 2011; Date decided: December 20, 2011; Counsel for Hadad: Tiffani M. Paulsen, Q.C. & Candace D. Grant; Counsel for Minister: Don Klaassen; Place of Hearing: Saskatoon, Saskatchewan.

This was a judicial review of a refused application for rehabilitation. The Applicant was a Jordanian Christian who had lived in Israel since his family moved there when he was a child. The Applicant later fled to the US, where his father lived, due to continuing persecution of the family. In 1990, the Applicant’s father burned down his store, and due to his involvement the Applicant was convicted of arson-related charges. The Applicant also had a conviction on the basis of misuse of food stamps.

The Applicant was sentenced to a minimum of seven years. In prison he completed his GED and held jobs. He was deported back to Israel where he faced persecution, as previously. He tried and failed to move to Canada, and eventually moved (illegally) back to the US. He was again deported, and then came to Canada on a temporary stay, without revealing his criminal record.

In Canada, the Applicant married a Canadian citizen, and they had children. He obtained a work permit, and opened a construction business which employed three full-time staff. He is active in the community.

The Court noted that following factors were considered:

The following factors were listed in the officer’s decision in favour of and against the applicant’s rehabilitation:

In favour of rehabilitation:

- No criminal activity since being paroled in 1998;

- Canadian wife and children;

- Applicant’s statement that prison changed his life and rehabilitated him;

- Active member in church and community;

- Positive reference letters from members of his community;

- Prompt application for work permit to support his family; and,

- Owner and operator of growing construction business.

Against rehabilitation:

- Past convictions of serious criminality;

- Failure to apply for rehabilitation before entering Canada;

- Applicant was not eligible for rehabilitation when he entered Canada;

- Application did not abide to US law and was therefore deported;

- Applicant showed lack of respect to US law by lying to police officer;

- Applicant’s application for judicial review of decision denying his refugee claim was dismissed;

- Deportation order issued against applicant in 2008; and,

- Applicant is currently in non-compliance with Canadian immigration law (para. 46).

The Court found that the officer had placed too much emphasis on the Applicant’s past criminal record—which, after all, was a necessary pre-requisite to a rehabilitation application—and had not considered the factors which suggested the Applicant would be unlikely to commit crimes in the future. Therefore the finding was overturned.

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