Federal court says IRCC’s decision on applicant’s criminal rehabilitation is unreasonable

An individual with a past felony conviction may be considered inadmissible to Canada on the grounds of serious criminality. Individuals with serious criminality must apply for criminal rehabilitation to obtain access to Canada, no matter the time that has elapsed since completing their sentence.

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At the end of March, the Federal Court ruled on a case concerning serious criminal inadmissibility and rehabilitation, namely Gosh v. Canada (Citizenship and Immigration).

The Immigration, Refugee and Citizenship Canada (IRCC) officer assigned to the case refused Gosh’s permanent residence application on the assumption that Gosh was not rehabilitated and therefore still criminally inadmissible to Canada, even though he provided plenty of evidence to the contrary.

Facts of the case

Gosh is a Palestinian citizen of Israel who entered Canada and submitted a claim for refugee protection in 2002. He was found to be a Convention refugee and became a permanent resident of Canada in 2004.

In 2006, Gosh was convicted of three counts of assault with a weapon and one count of dangerous operation of a motor vehicle. He received concurrent sentences of two and half years in prison for the assault charges and two years for the driving charge.

In 2007, Gosh was deemed inadmissible to Canada due to serious criminality as a result of these convictions and lost his permanent resident status. His removal order was issued but as a protected person, he was permitted to remain in Canada.

In 2020, Gosh applied for permanent residence in Canada on humanitarian and compassionate (H&C) grounds under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA). Since he was a protected person in Canada, he was allowed to submit an application for permanent residence within Canada.

Since he was deemed criminally inadmissible, the only way he was able to restore his permanent resident status was to be granted an exemption under H&C grounds. His request for H&C relief was based on his rehabilitation since he committed the crimes. The immigration officer refused his application.

Opinion of the court

Gosh applied for judicial review of the decision to refuse his application and contends that the decision was unreasonable. The court determined that the immigration officer’s assessment of criminal rehabilitation was in fact unreasonable.

In his application, Gosh provided evidence of his rehabilitation in multiple ways. His criminal offenses were committed over 15 years ago and he expressed deep remorse for his actions. His life since then has demonstrated that those actions were out of character. He demonstrated rehabilitation as he had become well-established in Canada, operated his own successful business since 2008, and was in a stable, long term romantic relationship. He was financially self-sufficient and supported himself, his girlfriend, and her children.

In determining the outcome of an H&C case, the officer has to consider whether the individual circumstances outweigh the general public policy so as to warrant making an exception to the usual rule that serious criminality prevents one from obtaining permanent resident status.

The officer acknowledged that the applicant had expressed remorse for his conduct and that he had maintained a clean civil record ever since. The officer concluded that, despite the positive factors, “the convictions are serious and merit some negative weight towards the applicant’s establishment.”

The court concluded that the officer failed to understand the relevance of the applicant’s clean civil record and other indications of rehabilitation, so failed to engage with the evidence reasonably. In addition, given the centrality of this issue to the H&C decision, the officers unreasonable analysis of this factor is significant enough to render his decision to refuse Gosh’s application as unreasonable.

Implications of the case

The Canadian government offers an application for criminal rehabilitation to those who are inadmissible to the country. When applying for criminal rehabilitation with serious criminality, the decisions of these applications are highly subjective, and made at the discretion of Canadian immigration officials.

It is therefore important to make sure your criminal rehabilitation application is complete and comprehensive. The application must include the following:

• Application for Criminal Rehabilitation form
• Use of a Representative form, if applicable
• Copy of applicants Passport
• Statements addressing circumstances of conviction(s), applicants' rehabilitation
• Letters of reference
• Court documentation for any offense on record
• The foreign or Canadian laws under which you were charged or convicted. You can obtain copies of foreign laws by contacting local police authorities, lawyers, or the courthouse where the offence occurred.
• FBI and State Police background checks

Once these documents have been included, the application can be submitted to a Canadian consulate for processing.

It is also recommended that you hire a Canadian immigration lawyer that specializes in overcoming criminal inadmissibility issues. These lawyers will work with you to understand your situation and help to submit the strongest possible application to Canadian immigration authorities.

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