Date: 20060525
Docket: IMM-4803-05
Citation: 2006
FC 641
Ottawa, Ontario, May 25, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
AFSHIN
KEYMANESH
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant has challenged a decision made by an officer of the Respondent
(Department) denying his application for permanent residency status because of
a failure to obtain a pardon from a conviction for impaired driving in 1998.
In the absence of a pardon, the Applicant was ineligible for landing and, in
the result, subject to removal.
Background
[2]
The
Applicant came to Canada from Iran in 1992. Since that time, he has made
significant cultural and social contributions to the community. Indeed, it was
on the basis of those contributions that he was admitted for humanitarian and
compassionate (H&C) reasons in 1996. The Departmental report recommending
him for landing described him very positively:
It is felt that Mr. Keymanesh has not only
contributed significantly to the local Iranian community culturally, but to the
Canadian community as a whole, and will continue to do so. Highly skilled
Persian instrument maker who is self-supporting and would probably qualify
under the self-employed category. He is highly respected within the Iranian
community and well integrated within society. His work and music teaching does
enrich the community and seen by the coomunity (sic) as an important part of
maintaining the cultural heritage of the local Iranian community. If forced to
return to Iran Mr. Keymanesh would suffer an undue hardship in that the music
that is so much been part of his life, would probably be lost forever, or a
(sic) the very best, he would be forced to practise his craft underground.
-Mr. Keymanesh impressed me a t (sic) the
interview and appeared to be a very honest and sincere individual.
[3]
By letter
dated June 12, 1996, the Department advised the Applicant that he had been
approved in principle for a visa exemption but that landing would be subject to
meeting other immigration requirements, including health and security
assessments.
[4]
When the
Department learned of the Applicant’s criminal conviction, it notified him of
the need for both a pardon and a valid Iranian passport. It also advised him
that he would not be eligible to apply for a pardon for three years. This
extension of time afforded by the Department was generous because the Applicant
could have been removed immediately on the basis of his criminal conviction. By
letter dated March 20, 2001, the Department again advised the Applicant of the
need for a pardon and a passport. It appears from the Record that that letter
was not initially received by the Applicant and it was re-forwarded to him at a
new address in Harrison Hot Springs by covering letter of July 17, 2001. Also
in the Record is a letter from the Applicant to the Department dated July 19,
2001, requesting a copy of the original letter confirming his approval in
principle for admission to Canada which he advised had not been
received.
[5]
The
Department’s file indicates that the Applicant maintained fairly regular
contact including advising it of his various changes of address over the
years. Although the Applicant was reasonably diligent in keeping the Department
advised of his whereabouts, he was not particularly attentive to meeting its
outstanding request for a pardon. The only explanation offered by the
Applicant for his failure to fulfil this requirement is that he was confused
about the process. Nevertheless, the Record does indicate that he made some
effort to attend to the Departmental requests for information. The problem is
that he did not advise the Department of what he was doing and the Department, at
one point, lost track of his whereabouts.
[6]
The
Department, quite rightly, was not prepared to hold the Applicant’s case for
landing in abeyance indefinitely. It wrote to him on January 6, 2002, at his
Harrison Hot Springs address (which, in reality, was a forwarding address)
giving him thirty (30) days to respond or run the risk of having his
application for landing resolved in the absence of a pardon. It appears from
the Record that this letter was returned by Canada Post to the Department as
“undelivered”.
[7]
When it
did not hear from the Applicant, the Department sent a “final notice” letter to
him dated March 20, 2003 at the Harrison Hot Springs address and it, too, was
returned as “undelivered”.
[8]
When
nothing further was heard from the Applicant, the Department refused his
application for permanent residence and attempted again to advise him of that
determination by a letter dated April 28, 2003, sent to the Harrison Hot
Springs address. On the same day the Department recorded the following reason
for its decision:
Applic refused for criminal and
inadmissibility. Subject did not respond to our previous letters for evid of
pardon or evid that he applied for same.
[9]
The
Applicant filed an affidavit in support of this application deposing that he
had advised the Department of a change of address from Harrison Hot Springs to
Chilliwack when he attended at the Department’s office on Hornby Street. That affidavit does not
indicate when the move occurred, or when the notification of the change of
address was given to the Department; but there is no doubt that the move did
occur. The Applicant’s affidavit states that he did not receive any of the
three (3) notification letters referenced above. He deposed that his Harrison
Hot Springs address was that of former friends with whom he had had a falling out
and who had apparently not bothered to forward his mail to his new Chilliwack address. He rather blithely
assumed that any mail from the Department sent to him via Harrison Hot Springs
would ultimately make its way to him in Chilliwack by virtue of the change of address
information he says he had provided earlier to the Department. There is, though,
no indication in the Record of any notification having been recorded by the
Department with respect to the Applicant’s new address in Chilliwack, albeit that the Department
was aware that the Harrison Hot Springs address was no longer valid.
Issue
[10]
Did the
Department owe a duty to give notice to the Applicant that it was intending to
determine his application for permanent residence in the absence of proof of a
pardon and, if so, did it fulfil that duty?
Analysis
[11]
The issue
raised on this application for judicial review is one of procedural fairness
involving the duty to give notice. In such a case, the standard of review is
one of simple correctness and does not require a pragmatic and functional
approach: see Ha v. Canada (Minister of Citizenship and
Immigration)
2004 F.C.A. 49, [2004] F.C.J. No. 174 (F.C.A.).
[12]
Counsel
for the Department argued that it had no legal obligation in this case to give
any notice to the Applicant with respect to his potential risk of deportation.
She points out, with some validity, that the Applicant was always subject to
potential removal until he was approved for landing and that, once he was
convicted, he was ineligible for landing because of inadmissibility. She says
that the Applicant was aware of these issues affecting his status in Canada and that it was up to him to
overcome the legal impediments that he faced.
[13]
I do not
accept that, in these circumstances, the Department had no legal obligation to
notify the Applicant of the potential consequences of failing to produce a
pardon. The Department, of course, attempted to give notice, albeit
unsuccessfully. This could be seen as an acknowledgment that notice was
legally required but I am not inclined to give it that much import. What is
significant is that the Applicant had some legal status in Canada. Unlike a visa applicant who
is seeking status here, the Applicant had been lawfully in Canada since 1996 and he had been
approved in principle for landing on H&C grounds since that time. He had
also received authorization for employment in Canada and, even after his criminal conviction,
the Department did not seek to declare him inadmissible. To its credit, the
Department allowed the Applicant to remain in Canada and thereby gave him the time to obtain
a pardon which would remove the legal impediment to landing.
[14]
I agree
with the Applicant’s counsel that cases like the one at bar are very
fact-specific and that any duty to give notice and the means by which notice is
effected are contextual. This point is made by David J. Mullan in Administrative
Law (2001) at page 233:
It is one of the fundamentals of
procedural fairness that those affected by decisions coming within its ambit
should in general receive notice of the process about to be undertaken in a
sufficient degree of detail and in a timely enough fashion to enable the
effectuation of their participatory entitlements. However, what this involves
is a very context-sensitive inquiry. Moreover, as will be seen a little later
in this chapter, there are also rare emergency situations in which notice comes
and hearing opportunities are provided after a preliminary or interim decision
or action has been taken.
[15]
The
kinds of considerations identified in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No.
39 (S.C.C.) apply with equal force to the obligation by an administrative
decision-maker to give effective notice, bearing in mind, of course, that a
failure to give any notice will deprive a person of the right to be heard. This
is the crux of the issue in the case at bar: the right to make one’s case in
response to an administrative decision which carries serious consequences.
[16]
Here, the
Applicant had a clear indication that the Department required proof of a pardon
before his application for landing would be finalized. That was fair to him as
far as it went. However, when the Department began to contemplate the
possibility of revoking his interim status, it did have a duty to inform him of
that risk. Indeed, the Department’s lengthy acquiescence may well have created
some expectation in the mind of the Applicant that time was not of the essence
and that he would be informed of any change in the Department’s position.
[17]
It is
difficult to contemplate any decision by the Department which would have
greater significance to the Applicant than the one taken here. The
finalization of his application for permanent residency without the required pardon
had only one possible outcome – deportation. The requirement that notice be
afforded to the person affected by such a decision is fundamental to the
achievement of fairness: it is the essential foundation of virtually all of the
other procedural fairness protections.
[18]
The
obligation to give effective notice of a potentially adverse administrative
decision is different than a situation involving the obligation to produce
evidence or to meet a burden of proof. Cases like Arumugam v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1360, 2001 FCT
985 (C.A.); Bernard v. Canada (Minister of Citizenship and Immigration),
[2001] F.C.J. No. 1474, 2001 FCT 1068; Legault v. Canada (Minister of
Citizenship and Immigration) (2002), 212 D.L.R. (4th) 139
(F.C.A.), reversing 203 D.L.R. (4th) 450; Tahir v. Canada (Minister of Citizenship and
Immigration),
[1998] F.C.J. No. 1354; and Allee v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 468 – all cited by the Respondent – deal
with the obligation to produce evidence to a decision-maker and correctly hold
that the person affected ordinarily carries that burden. With few exceptions,
the decision-maker has no duty to make independent inquiries or to search out
evidence that might have been identified through the inquiry or hearing process
and which is available to the person affected. I believe however that
effective notice is required, in cases like this one, where a person’s status
in Canada is effectively being revoked,
and where the right to be heard hangs in the balance.
[19]
The
question remains as to where the responsibility lies where notice has not
occurred because contact with the affected person has been lost. Here the
Department attempted to give notice to the Applicant and the content of the
letters it sent cannot be faulted. However, the critical notification letters
– those which spoke of the potential consequences of failing to respond – were
not received, and the Department knew that. There is no evidence that the
Department did anything to locate the Applicant before it decided to revoke his
interim status, despite the fact that he undoubtedly could have been found
fairly easily through other references in the file.
[20]
It is
noteworthy that the Department’s own policy guidelines (IP5 – Immigration
Application in Canada Made on Humanitarian and Compassionate Grounds,
section 17.3) suggest that where contact has been lost some effort should be
made to locate the subject. Those guidelines indicate that where an Applicant
does not respond to requests for information or fails to provide an updated
address a decision can be taken “based on information on file as long as previous
correspondence has informed the applicant of how and when to reply and included
the consequences of failing to respond”. Those guidelines go on to indicate
that officers should indicate in their computer notes “any attempts to verify
the applicant’s current address such as looking in the local telephone
directory, calling the most recent telephone number provided on the application
form or calling other persons listed as contacts or representatives”. These
recommendations imply that where the Department is aware that its notification
letters have not been received there is some responsibility to make some
inquiries with respect to whereabouts. This is particularly important here
given the Department’s history of dealings with the Applicant over the years which
indicated that he had been quite consistent in keeping it apprised of his
whereabouts and had not infrequently initiated contact.
[21]
This case
is also unique because the Applicant has deposed that he did notify the
Department of his move to Chilliwack, but the Department continued
to use his Harrison Hot Springs address. I have no reason to discount the
validity of that evidence or his evidence of not receiving the Department’s
letters. It is indisputable that two notice letters were undelivered and there
were at least two other documented, albeit unrelated, instances of correspondence
between the Applicant and the Department which either went astray or which were
overlooked. These are the kinds of errors that routinely occur in business
environments involving the handling and exchange of large volumes of
documents. The question, of course, is who should bear the consequences of an
error of this sort: to my way of thinking, it is the party who makes the error
and not the party adversely affected by it. This is particularly the case
where the Department is aware that its notices have not been received, and yet
does nothing to determine a person’s whereabouts. From the Department’s Record
in this case, it is also not clear that the officer who decided to refuse the
application for landing was even aware that its notification correspondence had
been returned as undelivered.
[22]
I do not
mean to suggest by these reasons that the Department must exhaust every tracing
possibility. But some effort to that end is essential in cases like this, at
least to the extent recognized by the Department’s own guidelines.
[23]
In these
particular circumstances, I am satisfied that the Department did not meet the
duty of fairness owed to the Applicant with respect to the giving of effective
notice. This failure was entirely inadvertent but does require that the
decision to refuse the Applicant’s application for permanent residence be set
aside, with that matter to be remitted to a different decision-maker for
reconsideration on the merits. The Applicant shall be given a fresh
opportunity to make submissions to the Department with respect to the
perfection of his application for permanent residency. I am, of course,
assuming that any subsequent steps taken by the Department or by any other
agency of the Government will be either reversed or held in abeyance pending
this re-determination.
[24]
I give both
parties the opportunity to propose a certified question within seven (7) days
of this decision with a right of reply within the following three (3) days.
JUDGMENT
THIS COURT ADJUDGES that:
1.
this application
is allowed and that the Respondent’s decision to refuse the Applicant’s
application for permanent residence is hereby set aside, with the matter to be
remitted to a different decision-maker for reconsideration on the merits; and
2.
both parties
shall have the opportunity to propose a certified question within seven (7)
days of this Order with a right of reply within the following three (3) days.
"R.
L. Barnes"
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