Date: 20060816
Docket: IMM-6910-05
Citation: 2006 FC 990
Quebec, Quebec,
August 16, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
TRACY-ANN SPENCER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (the Act) of a decision of an immigration
officer, Ron Legault (the officer), dated October 31, 2005, in which the
reconsideration and withdrawal of
a report made under subsection 44(1) of the Act (subsection 44(1) report) was
refused.
FACTS
[2]
The
applicant is a citizen of Jamaica who came to Canada in 1993. She
is a permanent resident of Canada and a single mother of three children. The
applicant was convicted by Justice Mossip of the Ontario Superior Court of
Justice on September 13, 2002, of importing cocaine. She was sentenced on March
26, 2003, to a conditional sentence of two years less a day. The first 20
months were under house arrest, with specific conditions. The remainder of the
sentence involved a curfew instead of house arrest. The Crown appealed her
sentence and on August 3, 2004, the Ontario Court of Appeal substituted a
custodial sentence of 20 months, taking into consideration the fact that she
had completed 16 months of her conditional sentence.
[3]
The
officer interviewed the applicant on July 27, 2005, at the Vanier Centre for
Women in Milton, Ontario.
The purpose of the interview was to determine if the applicant was inadmissible
and whether or not the officer should write a report pursuant to subsection
44(1) of the Act.
[4]
The
officer, in a decision dated August 31, 2005, wrote a subsection 44(1) report
indicating that the applicant was inadmissible for reasons of serious
criminality pursuant to paragraph 36(1)(a) of the Act. The subsection 44(1)
report was then considered, and a subsection 44(2) referral for an admissibility
hearing was made, by the Canadian Border Services Agency (CBSA) Manager in Kitchener, K.
Mustakas, in a decision dated September 14, 2005.
[5]
The
applicant received a copy of the subsection 44(1) report at her admissibility
hearing on September 29, 2005. The admissibility hearing did not proceed on
that date, as the applicant requested to be represented by counsel. The matter
was put over for one week until October 6, 2005, when counsel requested a new
date in order to prepare. The hearing of the case began on November 8, 2005.
[6]
In
a letter dated October 4, 2005 and another one dated October 31, 2005, counsel
for the applicant requested that the Manager withdraw the referral for an
admissibility hearing on the basis that the decision was unlawfully made.
[7]
In
a decision dated October 31, 2005, the officer, Mr. Legault, who was the Acting
Manager at the time, decided that the decision would remain unchanged.
ISSUES
[8]
1. Did the
officer err in the exercise of his discretion pursuant to subsection 44(1) of the
Act?
2. Was the duty of fairness
owed to the applicant met?
3. Did the officer err by
ignoring evidence?
4. Did the officer display a reasonable
apprehension of bias?
ANALYSIS
[9]
Questions pertaining
to the scope of the duty of fairness and the scope, if any, of the officer's
discretion under the Act attract the standard of correctness (Awed v. Canada (Minister of Citizenship and
Immigration) 2006
FC 469 at paragraph 8).
1.
Did the officer err in the exercise of his discretion pursuant to subsection
44(1) of the Act?
[10]
The
applicant argues that the scope of the officer’s discretion under subsection
44(1) is broad enough for him to consider the factors outlined in the relevant
sections of the Citizenship and Immigration Canada (CIC) Policy Manual (the
Policy Manual), including the various humanitarian and compassionate
considerations. In fact, the applicant asserts that the officer had a duty to
consider a broad range of relevant factors, as outlined in the Policy Manual.
The applicant submits that the officer failed to do this and that his sole
consideration was whether or not a crime was committed that would constitute
serious criminality pursuant to paragraph 36(1)(a) of the Act. The applicant
alleges that the officer’s task was not simply to assess whether the nature of
the offence was serious, and the sentence appropriate, but whether the
applicant should benefit from the exercise of discretion.
[11]
In Hernandez v. Canada (Minister of Citizenship and
Immigration) 2005 FC
429, at paragraph 42, Justice Judith A. Snider discusses the scope of
discretion afforded to the officer pursuant to subsection 44(1):
While acknowledging this concern, I conclude that
the scope of the discretion of an immigration officer under subsection 44(1)
and of the Minister's delegate under subsection 44(2) is broad enough for them
to consider the factors outlined in the relevant sections of the CIC procedural
Manual. To the extent that some of these factors may touch upon humanitarian
and compassionate considerations, I see no issue.
[12]
Even
though Justice Snider concluded that the
scope of the discretion of immigration officers is broad enough for them to
consider the factors outlined in the Policy Manual, she does not say that the
officers have a duty to do so.
[13]
In Awed, above, Justice Richard Mosley takes a different
position to the one articulated by Justice Snider. Justice Mosley does not
stress the officer’s ability to consider factors outlined in the Policy Manual.
Justice Mosley believes the officer’s discretion pursuant to subsection 44(1)
is very limited. He states the following at paragraphs 16, 18 and 19:
Section 44 applies to all grounds of
inadmissibility for foreign nationals and permanent residents. In the
application of the discretion exercised under subsection 44(2), the scope of
the Minister's discretion may vary depending on the grounds alleged or on
whether the person concerned is a permanent resident or a foreign national.
Permanent residents, as Justice Décary observed at paragraph 46, may have the
opportunity to challenge both the immigration officer's report and the
Minister's delegate's decision before the Immigration Division. But in
either case, where criminality is alleged, the scope of the discretion afforded
the officer and the Minister is very limited, reflecting Parliament's intention
that non-citizens who commit certain types of crimes are not to remain in Canada.
. . .
In my view, where an interview is held under s.44
(1), the purpose of the interview is simply to confirm the facts that may
support the formation of an opinion by the officer that a permanent resident
or foreign national present in Canada is inadmissible. The use of the word
"may" in s. 44(1) does not connote discretion but merely that the
officer is authorized to perform an administrative function: Ruby v. Canada
(Solicitor General) (C.A.), [2000] 3 F.C. 589 at 623 - 626, 187 D.L.R.
(4th) 675 (F.C.A.).
While there is some force to the applicant's
submission that it would be more efficient to allow the officer to exercise
discretion at this stage of the process, such as to decide whether a criminal
conviction should be discounted because of mental illness, the officer is not
empowered by the enactment to make such a determination. Formation of the
officer's opinion merely initiates a process which may or may not result in
removal. In every case, it remains open to the applicant to seek an
exception on humanitarian and compassionate grounds or a Pre-Removal Risk
Assessment.
[my emphasis]
[14]
In Canada
(Minister of Public Safety and Emergency Preparedness) v. Jung Woo Cha, 2006 FCA 126, the Federal Court of Appeal,
at paragraph 41, stated the following regarding the officer’s discretion:
I
appreciate that before the Standing Committee the Minister and senior bureaucrats
have expressed the view that personal circumstances of the offender would be
considered at the front end of the process before any decision is taken to
remove them from Canada (see Hernandez at paragraph 18).
I also appreciate that the Manual contains some statements to the same effect
(see Hernandez at paragraphs 20 to 23). However, these views and
statements were all expressed or made in respect of permanent residents
convicted of serious offences in Canada. No such assurances were given by
specific reference to foreign nationals. I need not, therefore, decide what
weight, if any, I would have given to such assurances in the circumstances of
the present case. Whether weight was properly given to such assurances in Hernandez
(where the issue was the scope of the Minister's delegate's discretion to refer
a report of inadmissibility in respect of permanent residents to the
Immigration Division), is a question better left for another day. I note that
questions were certified in Hernandez, but the appeal has been abandoned
(A-197-05).
[15]
The
jurisprudence is inconclusive as to the influence the factors outlined in the
Policy Manual should have on the officer’s discretion. Regardless of the
aforementioned inconclusiveness,
I am of the opinion that officers can take the Policy Manual factors into
consideration when
making a decision pursuant to subsection 44(1) of the Act, but it is not their duty to do so.
[16]
In the present
matter, contrary
to the assertions of the applicant, I am of the opinion that the officer did
take into consideration humanitarian and compassionate factors and that his
decision was not solely based on the applicant’s criminal acts. The officer
wrote the following:
The writer is sensitive to the best
interests of subject’s Canadian-born children in this case, given that subject
will not have the right to appeal if ordered deported from Canada. The writer believes that the
serious nature of the offence far outweighs any consideration to be given to
the children. The writer notes that the children’s father has himself relocated
to Jamaica, and would apparently be able
to continue to provide the financial support he currently provides to them.
While subject has been incarcerated, the children have been in the care of
subject’s mother. These conclusions are supported fully in paragraphs 46 and 47
of the Ontario Court of Appeal decision attached.
(officer’s narrative report, Tribunal
record at pages 3 and 4)
[17]
In
light of the above, I find that the officer did not err in the exercise of his
discretion. The officer’s
notes, which are being relied upon as reasons, disclose that all of the
relevant factors were considered prior to the applicant’s referral to a
hearing.
2. Was the duty of
fairness owed to the applicant met?
[18]
In Hernandez, above, at paragraphs 70 and 71, Justice Snider discussed the duty
of fairness owed to the applicant for the purposes of subsection 44(1) of the
Act:
Balancing all of these factors, I find that they
point toward a more relaxed duty of fairness, similar to that found by the Supreme
Court in Baker. In my view, the duty of fairness implicitly adopted by
CIC for purposes of the subsection 44(1) report is appropriate. Although these
are administrative decisions (rather than quasi-judicial) and although the
person affected has some other rights to seek to remain in Canada, these are
serious decisions affecting his rights. CIC, whose choice of procedures should
be respected, has elected to give the affected person a right to make
submissions, either orally or in writing and to obtain a copy of the report.
Having a copy of the report would allow the affected person to decide whether
he wishes to seek judicial review of the immigration officer's report to this
Court. This, I conclude is the duty of fairness owed the applicant and others
in his position with respect to the officer's report.
Implicit in this duty is, in my view, a
requirement that the person being interviewed by an immigration officer is
informed of the purpose of that interview so that he may make meaningful
submissions. Further, I would think that the duty of fairness would require the
immigration officer put to the interviewee any information he has that the
interviewee would not reasonably be expected to have. A further implication is
that the person should be offered the opportunity to have counsel present at
any interview or to assist him in preparing written submissions. All of this is
part of what CIC has acknowledged is required for the person to "fully
understand both the case against them and the nature and purpose of the
report".
[19]
In light of the
above, the duty of fairness owed pursuant to subsection 44(1) of the Act requires
that the person being interviewed by an officer be informed of the purpose of
that interview and the possible consequences of said interview. The officer
must put to the person any information he has that the interviewee would not
reasonably be expected to have. Also, the person should be offered the
opportunity to have counsel present at any interview or to assist him in
preparing written submissions.
[20]
The applicant asserts
a breach in the duty of fairness because she did not receive a copy of the
report until her admissibility hearing. I disagree with this position. Justice
Snider held that the duty of fairness does not require that the subsection
44(1) report be put to the applicant prior to the subsection 44(2) referral (Hernandez
above at paragragh 72). The
applicant received the report on September 29, 2005, at the first sitting of
her admissibility hearing. Her right to seek judicial review of the report was
not lost. Furthermore, as far as the admissibility hearing was concerned, the
member adjourned the hearing, in order to provide the applicant with the
opportunity to be represented by counsel. At the next sitting, the member once
again adjourned the hearing in order to accommodate counsel’s request to
prepare for the case. There has been no breach regarding the applicant’s right
to receive a copy of the report.
[21]
Although
the applicant was given an oral interview, she submits that she was neither
informed of the criteria against which her case was being assessed, the
possible outcome of the review, nor the opportunity to provide further
information. She states that given that she was not aware of the consequences,
counsel was not advised to submit further information. Although, the officer’s
notes of the interview indicate that he was aware that the applicant had
contacted “Barb Jackman law office”, the applicant asserts that counsel was not
given the opportunity to provide further information.
[22]
Following
the decision of the officer, dated October 31, 2005, refusing to reconsider and
withdraw the writing and referral of the subsection 44(1) report, this matter
proceeded to an admissibility hearing. At the admissibility hearing both the applicant
and the officer testified before the Board. As noted by the respondent, the
Board accepted the testimony of the officer as more credible than that of the
applicant. The officer testified that typically, when conducting such
interviews, he introduces himself, advises as to the purpose of his visit,
verifies that the person is not a Canadian citizen and proceeds to obtain
information. He further testified that at the time of the interview, no
decision is made as to whether a report will be written, but that the person is
advised of the possible repercussions, including the possibility of
deportation. He also asked the applicant whether she had any information to add
and whether she had counsel.
[23]
The
Board found the applicant’s assertion, that she had no concept of her possible
deportation, was untrue. The Board concluded that the applicant was fully aware
of the possibility of deportation without the statutory right of appeal prior
to even being interviewed by immigration officials. The possibility of deportation
was discussed during the course of her sentencing proceedings both at the trial
and the appeal (see affidavit of Katie Lynch, Exhibit A, Immigration Division
Decision, pages 9 and 10). The fact that the applicant told the officer that
she was represented by the office of Ms. Barbara Jackman, further speaks to the
fact that she was anticipating deportation proceedings.
[24]
As noted
by the respondent, the Board concluded that the applicant was fully alerted and
advised of the purpose of the interview. The applicant was afforded the
opportunity to add any other information. She was represented by counsel and
had the opportunity to contact counsel after the immigration interview, prior
to the writing up of the subsection 44(1) report.
[25]
In light
of the above, I find that the officer did in fact explain the purpose of the
interview to the applicant and its possible outcome. I also find that the
applicant was given an
opportunity to make submissions opposing her removal from Canada.
3. Did the officer err
by ignoring evidence?
[26]
The
applicant submits that the officer erred in law because his decision failed to
take into consideration relevant evidence and was based on erroneous findings
of fact.
[27]
In
Jeffrey v. Canada (Minister of Citizenship and Immigration) 2006 FC 605, at paragraph 15, Justice
Mosley stated the following regarding administrative officers and detailed
reasons:
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 decision 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.).
[28]
In
the present matter, I find that the officer’s reasons adequately explain the
basis of his decision and do not support an inference that he failed to
consider all the material before him, including the best interests of the
children. Upon review, it is clear that the officer considered what was
mentioned about the applicant by the Court of Appeal for Ontario at her
sentencing hearing. As noted by the respondent, this information was quite
extensive and included details about the applicant, her children, her family
relations here and in Jamaica, her education, her financial status, her
employment history, her establishment in Canada and her immigration history and
the details of her crime (see officer’s narrative report, Tribunal record at
pages 3 and 4).
[29]
The
respondent admits that the officer inaccurately stated that all three children
have one father, when in fact the third child has a different father from the first
two. However, I find that this mistake is immaterial because it does not
prejudice the applicant or change the outcome of the proceedings.
4. Did the officer display a reasonable
apprehension of bias?
[30]
The
applicant asserts that the officer’s decision not to reconsider the referral of
a report he himself had written gave rise to a reasonable apprehension of bias against
the applicant.
[31]
In Bhallu v. Canada (Solicitor General) 2004 FC 1324, Justice Yvon Pinard, at
paragraph 12, commented on the necessary conditions to illustrate a reasonable
apprehension of bias:
In
order for an applicant to successfully claim that there was a reasonable
apprehension of bias in the processing of his claim, he or she must demonstrate
that an informed person, viewing the matter realistically and practically, and
having thought the matter through, would conclude that it is more likely than
not that the decision-maker would not decide fairly (Committee for Justice and
Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369). In the
absence of any evidence to the contrary, it must be presumed that a
decision-maker will act impartially. To rebut this presumption, the applicant
must present more than vague allegations as to bias, which has not been done in
this instance. The applicant admits that the fact that the same officer
processed both claims is not sufficient to give rise to such a claim. However,
I do not think that the fact that both decisions were made on the same day
should negate them. The Officer's reasons leave nothing wanting. She deals with
all the evidence presented and comes to reasonable conclusions in both
instances.
[32]
In
the present matter, I find that the applicant failed to illustrate a reasonable
apprehension of bias. Given the seriousness of the allegation, clear and cogent
evidence should be provided in order for this Court to consider an allegation
of bias. No such evidence has been provided in the present matter. The
applicant did not illustrate that an informed person, viewing the matter realistically
and practically and having thought the matter through to its conclusion would
think it more likely than not that the decision-maker would unconsciously or
consciously not decide fairly.
JUDGMENT
- The application for
judicial review is dismissed;
- No question for certification.
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