Date: 20061016
Docket: IMM-1074-06
Citation: 2006 FC 1232
Ottawa, Ontario, October
16, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
RACHNA UBEROI
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Uberoi is a citizen of India and a failed refugee claimant in Canada. She was
repatriated on August 5, 2004. At that time Ms. Uberoi had an outstanding
application for landing on humanitarian and compassionate (“H&C”) grounds.
Her application was subsequently refused. She seeks judicial review of that
decision on the ground that a reasonable apprehension of institutional bias
arises from the respondent’s policies and procedures for assessing H&C
applications following removal of the applicants.
BACKGROUND:
[2]
Ms.
Uberoi came to Canada as a visitor on May 14, 2000 and received an
extension of her visitor status until October 31, 2001. She remained beyond
this time, making a refugee claim on April 15, 2002. A removal order was then
issued. Her refugee claim was refused on July 9, 2003 and the removal order
became effective. On June 4, 2004 the applicant received a negative pre-removal
risk assessment decision. A motion to stay her removal and an application for
judicial review were both denied. She was then removed. Updated submissions
regarding her situation in India were submitted in January 2006. In
refusing the H&C application on February 9, 2006, the officer concluded
that Ms. Uberoi would not suffer unusual, undeserved or disproportionate hardship
if required to apply for permanent residence from outside Canada.
ISSUE:
[3]
The
applicant does not contend that the officer ignored or misconstrued the
evidence or made an unreasonable decision. The sole issue in these proceedings
may be described as follows:
Do the
policies followed by the Minister in the assessment of applications for
exemptions under s. 25 (1) of the Immigration and Refugee Protection Act,
give rise to a reasonable apprehension of institutional bias in the case of
persons who have been removed from Canada?
STATUTORY FRAMEWORK:
[4]
Subsection
25 (1) of
the Immigration and Refugee Protection Act, S.C. 2001 C. 27 (IRPA) reads as follows:
|
25.
(1) 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.
|
25. (1) 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.
|
ANALYSIS:
Standard of
Review:
[5]
The
parties agree and I accept that it is well established that questions of
procedural fairness, including a question of bias in relation to a tribunal,
should be assessed on a correctness standard: Ellis-Don Ltd. v. Ontario
(Labour Relations Board), [2001] 1 S.C.R. 221, 2001 SCC 4 at para. 65.
As a result, where a breach of the duty of
fairness is found, the decision must be set aside: Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 at para. 44 (QL)
[Benitez]; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056
at para. 54 (QL).
Reasonable
Apprehension of Institutional Bias:
[6]
It
is trite law that procedural fairness requires that decisions be made free from
a reasonable apprehension of bias. The test commonly employed is that
enunciated by de Grandpré J., writing in dissent, in Committee for Justice
and Liberty v. Canada (National Energy
Board), [1978]
1 S.C.R. 369 at 394:
[T]hat test is “what would an informed
person, viewing the matter realistically and practically—and having thought the
matter through—conclude. Would he think that it is more likely than not that
[the decision-maker], whether consciously or unconsciously, would not decide
fairly.”
[7]
Where
institutional bias is alleged, the test is modified slightly to require that
the informed person, viewing the matter realistically and practically and
having thought the matter through, would have a reasonable apprehension of bias
in a substantial number of cases: 2747-3174 Québec Inc. v. Quebec (Régie des
permis d'alcool), [1996] 3 S.C.R. 919,
[1996] S.C.J. No. 112 at para. 44 (QL). Where a substantial number of cases can
not be identified, allegations of an apprehension of bias cannot be brought on
an institutional level but must be dealt with on a case-by-case basis: Benitez,
above at para.196.
[8]
The
standard for a reasonable apprehension of bias may vary, like other aspects of
procedural fairness, depending on the context and the type of function
performed by the administrative decision-maker involved: Newfoundland
Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992]
1 S.C.R. 623, [1992] S.C.J. No. 21 at para. 22 (QL).
[9]
“Bias”
was defined by Mr. Justice Cory in R. v. S. (R.D.), [1997] 3 S.C.R. 484,
[1997] S.C.J. No. 84 at para. 105 (QL) as denoting “a state of mind that is in
some way predisposed to a particular result, or that is closed with regard to
particular issues”.
[10]
The
applicant argues that the test for institutional bias has been met in the
present case because the criteria and procedures for the assessment of applications for
permanent residence after the removal of an applicant results in an
institutional state of mind predisposed to a particular result; namely the
conclusion that the applicant would experience no undue, undeserved or disproportionate
hardship in having to apply for landing from outside Canada.
[11]
The
applicant points to excerpts from Citizenship and Immigration Canada’s manual
IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate
Grounds
(the manual) that highlight that what an applicant is seeking is permission for
their application to be processed in Canada due to humanitarian or compassionate
considerations. In the applicant’s submission, the definitions provided by the
manual of what constitutes “undue, undeserving or disproportionate hardship” focus
the assessing officer’s attention on factors relating to the applicant’s
establishment in Canada. The applicant argues
that when those ties are severed by repatriation, the applicant is no longer in
a position to demonstrate that the requirement to seek permanent residence
abroad would be unduly severe.
[12]
The
applicant further points to the wording found in the standard refusal letter
which states that “[h]umanitarian and compassionate factors are assessed to
determine whether an exemption from certain legislative requirements to allow
your application for permanent residence to be processed from within Canada
shall be granted” [emphasis added]. This, she submits, illustrates that the
determination of what constitutes humanitarian and compassionate factors is
linked to presence in Canada.
[13]
The
applicant argues that the effect of these provisions is that the
immigration manual directs the reviewing officer to assess the hardship persons
requesting exemptions would face, if they were forced to return to their countries
of origin to apply for permanent residence. Where the requestor has already been
removed however, the undue, undeserving or disproportionate hardship occasioned
by removal has already occurred. Thus, the applicant submits, there no longer
exists a reason to exercise positive discretion and such requests are then
generally denied.
[14]
The
operation of subsection 25(1) of the IRPA is not restricted to requests brought
by foreign nationals who are present in Canada. There is
nothing on the face of this provision or IRPA as a whole that would preclude
the granting of permanent resident status or an exemption from the Act’s
requirements where the applicant is outside Canada “if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations…”.
[15]
This
case was argued entirely on the basis of the content of the respondent’s policy
manual. No evidence of actual bias was submitted, nor was there any evidence provided
to support the contention that immigration officers may believe that their
discretion is fettered in assessing H&C requests following removal of the
applicants. It is clear to me that the policy manual contemplates, as was the
case in this instance, that H&C requests will continue to be processed
following removal. Indeed, the manual states that:
Persons
under a removal order who submit an H&C application and pay the appropriate
fee are entitled to a decision on that application. There is no requirement
to delay removal unless a positive determination has been made during a
step-one H&C assessment [R233]. Therefore, clients seeking a decision prior
to removal must submit their application well before removal is scheduled (section
5.10) [Emphasis in the original].
[16]
And
further:
If
the H&C application cannot be completed prior to the applicant’s removal
from Canada, a decision will be made after removal and the applicant will be
informed of the decision…If their application is approved and they are
otherwise admissible to Canada, they will be allowed to return to Canada for
processing (section 5.11) [emphasis added].
[17]
The
provision of guidelines to assist in the interpretation and application of an
enabling legislative authority is appropriate so long as the guidelines are not
treated as mandatory in nature and allow for the exercise of the discretion
afforded by the statute: Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Ha v. Canada (Minister of Citizenship and
Immigration) (F.C.A.), [2004] 3 F.C.R. 195, 2004 FCA 49.
[18]
The
statute does not provide guidance as to the meaning of “humanitarian and compassionate
considerations”. The policy manual, therefore, provides a useful function in
drawing the attention of the assessing officers to what may constitute
appropriate considerations. There is no evidence in the record before me that
the exercise of the Minister’s discretion under s.25(1) of the IRPA has been
fettered by the use of the terms “undue, undeserving or disproportionate
hardship” in the manual or by the definitions provided for those terms.
[19]
H&C
officers are required by the manual to consider applicants’ submissions in
light of all of the information known to the officer (section 5.6). They are
explicitly told to approach each case with an open mind; being free to come to
a decision on the basis of all of the known facts and the submissions made in
an impartial and objective manner (section 5.30). Among the examples provided in
the manual which indicate what it means to fail to approach a case with an open
mind, is the following:
•
Too much reliance on the factors set out in the H&C guidelines, to the
exclusion of any other submissions made by the applicant… [Emphasis added].
[20]
In
oral argument, the respondent drew the Court’s attention to several other
provisions of the manual that underscore the conclusion that it clearly takes
into account the circumstances of persons in the applicant’s position. I do not
need to review them all here. I am satisfied that the applicant’s premise, that
the policies employed to review H&C applications leave no room for the
exercise of positive discretion when the applicant has been removed, is not
made out.
[21]
Based
on the record in these proceedings, a well-informed person, viewing the matter
realistically and practically, would not have a reasonable apprehension of bias
in a substantial number of cases where an H&C claim was being completed
after an individual’s deportation. A reasonable apprehension of institutional
bias has not been established.
[22]
I
also find no evidence of bias in the particular circumstances of the
applicant’s case; no “state
of mind that is in some way predisposed to a particular result, or that is
closed with regard to particular issues” to again cite Justice Cory’s
definition. The officer considered all of the applicant’s submissions including
those she had made following her return to India.
[23]
In
the result, the application will be dismissed.
[24]
The
respondent proposed the following question for certification:
Does the implementation of the IP 5
guideline produce an institutional or systemic bias on the part of decision
makers assessing the [H&C] applications of persons who have been removed
from Canada prior to the date
of the assessment of the application?
[25]
I
see no reason to certify this question. There is no evidence of bias in the record
before me; systemic or individual, actual or apprehended. The question would
not be dispositive of an appeal in this matter.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application is
dismissed. No questions are certified.
“Richard G. Mosley”
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