Alcantra v. Canada (Citizenship and Immigration), 2018 FC 404 : Decision Set Aside After Officer Relied on Incorrect Criminal Convictions and Restitution Information

The Federal Court reviewed the refusal of Marilyn Mendoza Alcantra’s inland spousal permanent residence application. The officer found her inadmissible for serious criminality and criminality and concluded that humanitarian and compassionate considerations did not outweigh her inadmissibility. The Court found that the decision rested heavily on significant factual errors concerning the number of her convictions and whether she had paid restitution. The officer also failed to explain a finding that she posed a danger to public safety despite substantial evidence to the contrary.

Key Principle

An immigration decision is unreasonable where important findings are based on factual errors that could have been identified from the record, particularly when those errors materially influence an H&C assessment. When an officer finds that an applicant poses a public-safety risk, significant evidence of rehabilitation, good character, employment, family establishment, and remorse must be meaningfully considered rather than left unaddressed.

Background

Ms. Alcantra, a Philippine citizen, entered Canada in 2003 under the live-in caregiver class. She lived in Vancouver with her Canadian husband and Canadian daughter and worked at a private hospital.

In 2007, while employed as a caregiver for a 93-year-old woman, she took two cheques totalling $3,000. She immediately confessed when confronted and later pleaded guilty to theft and use of a forged document. The sentencing court suspended sentence, imposed probation, and ordered $3,000 restitution.

Due to an error in the Provincial Court records, however, the probation documentation incorrectly indicated four convictions. That error entered RCMP records and later affected the Parole Board’s consideration of her record-suspension application. The Parole Board also believed restitution remained unpaid. Those inaccuracies ultimately reached the immigration officer assessing her permanent residence application.

Court Findings

• Applicant Had Two Convictions, Not Four

The record clearly showed that Ms. Alcantra pleaded guilty to only counts 1 and 4. The sentencing judge expressly stated that she had pleaded guilty to two counts. The officer nevertheless relied on the erroneous record indicating four convictions. The Court found this conclusion unreasonable because the correct information was identifiable from the record.

• Restitution Finding Was Unreasonable

Ms. Alcantra, her husband, and her mother-in-law provided statutory declarations stating that the restitution had been garnished from a bank account. There was no evidence from the bank establishing non-payment. Considering this evidence and the existing court-record errors, the Court found the conclusion that restitution had not originally been paid rested on a very shaky foundation.

• H&C Assessment Overlooked Important Evidence

The officer stated that she was not satisfied Ms. Alcantra did not pose a danger to public safety. Yet the analysis failed to address letters describing her as honest, reliable, respected, and an outstanding employee. The Court also noted her approximately 15 years in Canada, Canadian husband and child, remorse, early guilty plea, and the victim’s request for leniency.

Outcome

The Federal Court granted judicial review and remitted the application to another officer. The new officer was directed to accept that Ms. Alcantra had two convictions, not four, and that restitution had been paid. No question was certified.

Case Citation:

Alcantra v. Canada (Citizenship and Immigration), 2018 FC 404 (CanLII)