Date: 20060516
Docket: IMM-4567-05
Citation: 2006 FC 605
Toronto, Ontario, May 16,
2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
JOHN JEFFREY
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Jeffrey’s application for an exemption from visa requirements on humanitarian
and compassionate grounds was refused by an immigration officer on July 18,
2005. He has sought judicial review on the ground that the officer did not
provide adequate reasons to explain his decision that a waiver was not
justified. These are my reasons for concluding that the application must be
dismissed.
[2]
Mr.
Jeffrey is a citizen of Grenada who arrived in Canada as a visitor
in 1999 and then decided to stay. He married a landed immigrant and lived with
her for seven months. Their marriage broke down and they remain separated. The
applicant’s only child, his 8 year-old daughter, lives in Grenada along with
his mother. His only relative in Canada is his sister. He has
been steadily employed while in Canada and has no criminal record in Grenada or in Canada.
[3]
In 2001, Mr. Jeffrey
came to the attention of Citizenship and Immigration at which point he was
arrested and later released on bond. When he was released he filed a claim for
refugee status which, in due course, was refused. An order for his removal from
Canada was issued.
[4]
The
applicant filed an application to be permitted to remain in Canada based on
humanitarian and compassionate (H&C) grounds in November 2003. His
representative, an immigration consultant, filed four paragraphs of submissions
on his behalf. The submissions stated that Mr. Jeffrey had been working since
he came to Canada as an automotive technician and had never been the recipient
of social assistance, he had attended Centennial College, was a
member of St. Matthew’s Church and had opened a bank account.
[5]
In
May, 2005, due to the delay in considering the application, the officer
requested that a current application be completed “and all submissions Mr.
Jeffrey wished to be considered” in his case. An up-dated application form was
submitted together with additional information about his training and
registration as an automotive service apprentice from Centennial College and
the Ontario Ministry of Training. There is no indication on the Certified
Record of any further submissions having been made to the immigration officer.
A pre-removal risk assessment was conducted and he was found not to be at risk
if he returns to Grenada.
[6]
In
her file notes the officer reviewed Mr. Jeffrey’s history in Canada and the
evidence of establishment submitted in 2003 and 2005. She then concluded as
follows:
I make a negative decision in this case.
While I note he works and has taken continuing education, he has been under
removal from Canada since April 2003, and should
have effected his removal at that time. As per foss [sic] he is no longer
married to his landed immigrant wife. He has a mother and daughter in Grenada and only a sister in Canada. Establishment on it’s [sic]
own is insufficient grounds to warrant a waiver from the exemption of
legislative requirements. While he appears to be working in Canada, he appeared
to be working 3 years prior to coming to Canada in Grenada. He has provided very little information
and or evidence.
Based on the evidence before me I find
there to be insufficient evidence to warrant the waiver in this case. This
application is refused.
I. Issues
[7]
In
his application for leave and for judicial review and memorandum of fact and law,
the applicant raised three issues:
1. Whether the immigration officer
breached principles of fairness in failing to issue adequate reasons;
2. Whether the officer erred in
rendering an unreasonable decision;
3. Whether the applicant was denied
natural justice and fairness through the incompetence of his counsel.
[8]
At
the hearing, counsel for the applicant advised the Court that his client has
left the country and that counsel had been unable to make contact with the
applicant for the past six months. Thus he had not been able to obtain
instructions from his client as to the arguments to advance at the hearing.
However, having reviewed the jurisprudence in preparation for the hearing,
counsel advised that he was no longer advancing incompetence of counsel as a
ground of review.
[9]
As
stated by Justice Max M. Teitelbaum in Shirvan v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1509, [2005] F.C.J. No. 1864 (QL) the
test for incompetent counsel is very high. The party making the allegation of
incompetence must show substantial prejudice to the individual and that
prejudice must flow from the actions or inaction of the incompetent counsel.
It must be shown that there is a reasonable probability that, but for the
counsel's unprofessional errors, the result of the proceeding would be
different.
[10]
I am
satisfied from a review of the record and the applicable jurisprudence that the
applicant would not have established that he was denied natural justice or
fairness through the incompetence of his immigration consultant when his
H&C application was submitted.
[11]
Accordingly,
the sole remaining issue in these proceedings was whether the immigration
officer breached procedural fairness in failing to issue adequate reasons.
II. Statutory Framework
[12]
Subsection
25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)
provides as follows:
|
The
Minister shall, upon request of a foreign national who is inadmissible or who
does not meet the requirements of this Act, and may, on the Minister’s own
initiative, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the opinion
that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
Le ministre doit, sur demande d’un étranger interdit de
territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre
initiative, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
|
[13]
Ministerial
guidelines require that an applicant demonstrate that s/he would suffer “undue,
undeserved or disproportionate hardship” if forced to leave Canada: IP-5
Guidelines for Immigrant Applicants in Canada on Humanitarian and Compassionate
Grounds, s.12.1. The guidelines define unusual or disproportionate hardship
as hardship not anticipated by IRPA or the Immigration and Refugee Protection
Regulations,
S.O.R/2002-227 (IRPR), the result of circumstances beyond the applicant’s
control and which cannot be justified by the conduct of the applicant: Hawthorne
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1041, [2001]
F.C.J. No. 1441 (F.C.T.D.) (QL) aff’d [2003] 2 F.C.
555, 2002 FCA 475.
III. Standard Of Review
[14]
The
standard of review governing decisions of immigration officers in relation to
H&C applications is reasonableness: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193. The decision overall
must, therefore, be able to withstand a "somewhat probing
examination": Canada (Director of
Investigation and Research, Competition) v. Southam Inc., [1997] 1 S.C.R. 748, [1996] S.C.J. No. 116 (QL). A question as to the
sufficiency of reasons raises an issue of procedural fairness to be decided
against a standard of correctness: Attorney General v. Fetherston, 2005
FCA 111, [2005] F.C.J. No. 544 (QL).
[15]
While
an H&C decision must be supported by reasons (see Baker, above ) it
is inappropriate to require administrative officers to give as detailed reasons
for their decisions as may be expected of an administrative tribunal that renders
its decisions after an adjudicative hearing: Ozdemir v. Canada (Minister of
Citizenship and Immigration) (2001), 282 N.R. 394 , 2001 FCA 331; Agot v. Canada (Minister
of Citizenship and Immigration) (2003) 232 F.T.R. 101, 2003 FCT 436
(F.C.T.D.).
IV. Adequacy Of The Officer’s Reasons
[16]
The
applicant submits that the officer erred in failing to issue adequate reasons
for her decision. In particular, it is submitted, she failed to identify why
she came to the conclusion that the applicant would not suffer “undue,
undeserved or disproportionate hardship” if his application were refused. The
Officer merely reviews the facts as put forward in the applicant’s application,
then states that “[e]stablishment on it’s [sic] own is insufficient grounds
to warrant a waiver from the exemption of legislative requirements.” That
underlined statement, the applicant submits, should be ground in itself for a
finding of reversible error as a misapprehension of the test for H&C
consideration. Evidence of establishment may be sufficient to demonstrate undue
hardship in some circumstances.
[17]
Relying
on the decision of Justice Anne L. Mactavish in Adu v. Canada (Minister of
Citizenship and Immigration), 2005 FC 565, [2005] F.C.J. No. 693 (QL)[Adu],
the applicant contends that it is not enough that reasons be provided to fulfil
the requirements of Baker, but that the reasons must also adequately
explain the decision rendered. At no time does the officer explain why the
applicant’s six years of residency in Canada, school upgrading and work history
were insufficient to establish undue hardship if he is forced to leave Canada.
[18]
The
respondent submits that the officer’s reasons afforded the applicant the
opportunity to know why his application was denied. As such, the reasons
withstand a somewhat probing examination. The officer gave logical, rational
reasons for refusing the application. With the exception of the applicant’s
sister, the applicant’s family, including his eight year-old daughter are in Grenada. The
applicant’s evidence was that he had been steadily employed in Grenada before
coming to Canada. On the
facts before the officer, this was a sufficient reason to deny the application.
[19]
In
Adu, Justice Mactavish held that the reasons of the officer were
inadequate as they offered no explanation that could be considered by the Court
on review. The
officer reviewed the evidence of establishment in Canada offered by the
applicants and then simply stated her conclusion that this was not enough. The
Court was unable to subject the officer’s reasons to a somewhat probing
examination as there was no explanation of how she had arrived at that
conclusion.
[20]
In
Kim v. Canada (Minister of Citizenship and Immigration), 2006 FC 244, [2006] F.C.J. No. 318
(QL),
a case in which there was substantial evidence of establishment, I concluded
that the officer’s reasons were inadequate because of a failure to address the
submissions advanced by the applicants. There was evidence of the effect a
return to Korea would have
on the family which the officer did not address in any meaningful way. There
was no line of analysis that could lead the reader from the evidence to the
conclusion reached that no hardship would be suffered.
[21]
These
decisions draw
on the principles respecting the adequacy of reasons outlined by Justice Sexton
for the Federal Court of Appeal in Via Rail Canada Inc. v. National
Transportation Agency, [2001] 2 F.C. 25, 193 D.L.R. (4th) 357 [Via Rail]
and cited with approval by this Court on numerous occasions: Abdollahi-Ghane
v. Canada (Attorney General) (2004), 259 F.T.R. 9, 2004
FC 741; Alexander v. Canada (Solicitor General) (2005), 49 Imm.
L.R. (3d) 5, 2005 FC 1147; Demirovic v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1284, [2005] F.C.J. No.
1560 (QL).
[22]
As
stated by Justice
Sexton, in Via Rail at para.21, the duty to give reasons is only
fulfilled if the reasons provided are adequate. What constitutes adequate
reasons is a matter to be determined in light of the particular circumstances
of each case. As a general rule, Justice Sexton noted, adequate reasons are
those that serve the functions for which the duty to provide them was imposed. At paragraph
22 of his reasons he added the following comments:
The obligation to provide adequate reasons is not
satisfied by merely reciting the submissions and evidence of the parties and
stating a conclusion. Rather, the decision maker must set out its findings of
fact and the principal evidence upon which those findings were based. The
reasons must address the major points in issue. The reasoning process followed
by the decision maker must be set out and must reflect consideration of the
main relevant factors. [Footnotes omitted].
[23]
In Adu,
Justice Mactavish referred to several decisions of the Court in which the
officer’s reasons were found to be sufficient. In each of those cases, the
applicants had raised issues in their H&C submissions as to why a return to
their country of origin would cause them unusual, undeserved or
disproportionate harm, which the officer had addressed: Irimie v. Canada
(Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 206, [2000]
F.C.J. No.1906 (F.C.T.D.) (QL); Mohammed v. Canada (Minister of
Citizenship and Immigration) (2000), 100 A.C.W.S. (3d) 121, [2000] F.C.J. No.
1508 (F.C.T.D.) (QL); Nazim v. Canada (Minister of
Citizenship and Immigration) 2005 FC 125, [2005] F.C.J. No. 159 (QL).
[24]
In
this case, the applicant’s difficulty is that virtually nothing was submitted to
the officer in the nature of justification to demonstrate why an exception to
the normal visa requirements should be made, beyond minimal evidence of
establishment. The submissions dated November 4, 2003 contain four brief
paragraphs declaring the applicant’s determination to make a life in Canada, his work
history and lack of criminality.
[25]
The
applicant blames his former immigration consultant for failing to include
information about the applicant’s child in Grenada and the
support he was providing to the child and his mother from his Canadian
employment. He does not explain why he did not take advantage of the second
opportunity to provide the information when his application was updated in
2005. In any event, the consultant was acting merely as the applicant’s agent
and it was the applicant’s personal responsibility to ensure that the officer
had all of the evidence necessary to make an informed decision.
[26]
I
agree with the applicant that in so far as the officer’s reasons may be
interpreted as stating that evidence of establishment alone will never be
enough to justify an exception, that is a misunderstanding of the discretion
afforded the Minister to waive visa requirements on humanitarian and compassionate
grounds. However, in the context in which it was made, the statement may also
be interpreted as expressing the officer’s conclusion that the evidence of
establishment was insufficient in this case.
[27]
The
applicant’s submission that the reasons in this case are inadequate ultimately
comes down to this: that the officer must explain why the applicant’s removal
will not cause him unusual, undeserved or disproportionate hardship.
That is what he appears to take from Adu which he describes as being on all
fours with this application. With respect, I cannot agree. In Adu, the
applicant could not have understood the reasons why his H&C application was
refused, as the officer only pointed to the strengths of his position. In this
case, the officer pointed to the inadequacies of the application. The applicant
would not be left in any doubt as to why it was refused.
[28]
The
officer was obliged to make a decision based on the evidence submitted and her
reasons, while terse, reflect an analysis based on the evidence produced. As
Justice Frederick E. Gibson stated recently in Dhillon v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1067, 2005] F.C.J. No. 1336
(QL)
at paragraph 24:
…the
onus on [the officer] was simply to demonstrate by her reasons that she had
taken into account all of the evidence before her and had not taken into
account irrelevant factors. It was not incumbent upon her to seek out
additional evidence that might have influenced her decision.
[29]
I
am satisfied that the officer’s reasons, while brief, serve the purpose for
which they are provided. On the evidence, the decision was reasonable and does
not warrant intervention by the Court. No questions of general importance were
proposed and none are certified.
JUDGMENT
IT IS HEREBY
ORDERED AND ADJUDGED that the application for judicial review in this
matter is dismissed. No questions of general importance are certified.
“Richard
G. Mosley”
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