Date : 20000726
Docket : IMM-6013-99
BETWEEN :
ALFREDO COMPATTI
Applicant
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] Alfredo Compatti was landed as a permanent resident in Canada with his parents in 1965, only two months following his birth in Italy. Although he is an Italian citizen, he has spent virtually all of his life in Canada. His only visit to Italy was a short one when he was twelve years of age. He has never acquired Canadian citizenship.
[2] When he was approximately eighteen years of age, Mr. Compatti developed an addiction to drugs, especially heroin, for which he received some treatment. In order to support his drug habit, he engaged in crime. The record indicates a lengthy criminal history over a period of approximately fifteen years. In 1984, 1992, 1998 and 1999, the applicant was convicted of several offences, including breaking and entering, armed robbery, theft and mischief. His sentences ranged between three months and two years of imprisonment.
[3] In 1989, after interviewing the applicant under section 27 of the Immigration Act, R.S.C. 1985, c. I-2, immigration officials warned him that, as he was not a Canadian citizen, further criminal activity on his part could lead to an inquiry and expulsion from Canada.
[4] In March 1999, as a result of his ongoing criminal activity, a deportation order was issued against the applicant.
[5] The applicant appealed the decision to issue a deportation order before the Immigration Appeal Division under section 70 of the Immigration Act. The applicant did not contest the validity of the deportation order but appealed, pursuant to paragraph 70(1)(b), on the ground that, having regard to all the circumstances of the case, he should not be removed from Canada.
[6] The Immigration Appeal Division dismissed the appeal and the applicant now seeks judicial review of that decision.
[7] It is common ground that in reaching a decision pursuant to paragraph 70(1)(b) of the Act, the Immigration Appeal Division should consider the following factors in the exercise of its discretion: (i) the seriousness of the offence committed; (ii) the possibility of rehabilitation; (iii) the length of time spent in Canada; (iv) the appellant"s roots in Canada; (v) the support available to the appellant; and (vi) the degree of hardship that would be caused to the appellant by a return to the country of nationality: Al Sagban v. Canada (Minister of Citizenship and Immigration) (1998), 234 N.R. 173 (C.A.), application for leave to appeal to the Supreme Court of Canada granted October 14, 1999 under court file no. 27111.
[8] After carefully reviewing the decision of the Immigration Appeal Division, I am satisfied that the sixth factor concerning the hardship which might be caused to the applicant by his return to Italy was not considered. When asked to do so, counsel for the respondent could point to no statement in the decision under review concerning this criterion. This omission constitutes an error in law which in and of itself requires that the decision be set aside.
[9] The respondent also acknowledges the tribunal"s error in referring on two occasions to Mr. Compatti"s "six-month" relationship with his girlfriend, when in fact the only evidence is that its duration has been for over "six years". Indeed, the tribunal assumed that the relationship only existed during the applicant"s last period of incarceration in 1999. A proper understanding of the length of the applicant"s relationship with the person he describes as his common-law spouse could be a relevant factor in appreciating the degree of hardship upon his return to Italy.
[10] A further issue in dispute before the Immigration Appeal Division was whether the applicant was still resorting to drugs, including heroin. There were contradictions between the evidence of a police officer and the applicant on this point. The tribunal accepted the testimony of the police officer that the applicant [translation] "still consumes heroin" (" consomme encore de l"héroïne "). However, no reference was made in the decision to the October 1999 report from the Centre de recherche et d"aide pour narcomanes that the applicant"s urine tests established [translation] "his ongoing abstinence" (" son abstinence constante ") since 1996, when he entered its methadone rehabilitation program. While it may have been open to the tribunal to prefer the testimony of the police officer, it was an error to have reached such a conclusion without explicit reference to the rehabilitation report.
[11] Finally, the tribunal"s finding that the applicant had shown no remorse for his criminal activity was made without regard to two separate statements of Mr. Compatti"s during his testimony: [translation] "I feel very guilty for what I have done in my past. ... Yes, I regret my past, yes, I feel very guilty, I have a sense of remorse." (" Je me sens très coupable de qu"est-ce que j"ai fait dans mon passé. ... Oui, je le regrette, oui, je me sens très coupable, j"ai des sens de remords. ") If the tribunal did not accept the applicant"s sincerity when he made these statements, it was required to at least acknowledge they were made and state the reasons for not believing this evidence.
[12] For these reasons, this application for judicial review will be granted and the applicant"s appeal from the decision to issue a deportation order will be referred for rehearing and redetermination before the Immigration Appeal Division by a differently constituted panel. Neither party suggested the certification of a serious question. There will be no order as to costs.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
July 26, 2000