Krotov v. Canada (Minister of Citizenship and Immigration), 2005 FC 438

Date: 20050401

Docket: IMM-6356-04

Citation: 2005 FC 438

Ottawa, Ontario, April 1, 2005

Present: The Honourable Mr. Justice Blais

BETWEEN:

BORIS KROTOV

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]        This is an application for judicial review of a decision by an officer of the Canadian Border Services Agency (CBSA) on May 13, 2004, denying Boris Krotov (the applicant) an exemption from the requirement that he obtain a permanent resident visa outside Canada based on humanitarian and compassionate considerations pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).

RELEVANT FACTS

[2]        The applicant is a citizen of Russia. He alleges that he has a well-founded fear of persecution based on his Baptist religion. He went to the United States, where he lived for eight years, before being deported in the summer of 2000. He arrived in Canada and claimed refugee status, but his application was dismissed on May 2, 2003.

[3]        The applicant accordingly filed an application for permanent residence in Canada on humanitarian and compassionate grounds on August 13, 2003. On January 31, 2004, he also filed a pre-removal risk assessment application (PRRA).

[4]        On May 13, 2004, after reviewing Mr. Krotov's case, the CBSA officer dismissed the residence application on humanitarian and compassionate grounds. She also dismissed the PRRA application. The applicant was notified of these two decisions in two separate letters, sent on July 5, 2005.

[5]        The applicant is thus challenging the decision by the CBSA officer on his permanent residence application on humanitarian and compassionate grounds, but not challenging the PRRA decision. The applicant does not dispute the validity or merits of the CBSA officer's decision, but challenges it only on the ground that a CBSA officer who has jurisdiction to make a PRRA decision does not also have the power to make a decision on a Canada residence application on humanitarian and compassionate grounds.

ISSUE

[6]        Does a PRRA officer have jurisdiction under the Act to represent the Minister of Citizenship and Immigration and so act on an application for permanent residence in Canada on humanitarian and compassionate grounds pursuant to subsection 25(1) of the Act?

ANALYSIS

[7]        As this is a judicial review of a purely legal point, the applicable standard of review is that of correctness (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84).

[8]        Instead of redoing the analysis already undertaken by my colleague Martineau J., I will quote his comments in Zolotareva v. Canada (Minister of Citizenship and Immigration), 2003 FC 1274, [2003] F.C.J. No. 1596, at paragraphs 12-18:

(A)     Did the PRRA Officer have the authority under the Act to represent the Minister for the purpose of conducting the application under subsection 25(1) of the Act?

The applicant submits that the PRRA Officer exceeded his jurisdiction by making a determination pursuant to subsection 25(1) of the Act which 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.

The applicant argues that this provision provides the "Minister" and the PRRA Officer to exercise its discretion. In support of this argument, the applicant submits that there is no indication that the Minister delegated any authority to the PRRA Officer.

According to subsection 6(1) of the Act, the Minister may designate any persons or class of persons as PRRA officers to carry out any purpose of any provision of the Act. A review of the instruments of designation/delegation under the Act shows that the PRRA Officers have been delegated the authority established under subsection 25(1) of the Act.

More particularly, Module 1 of the Designation Modules (Item 45) delegates the determination under subsection 25(1) of the Act:

Item 45. Delegated Authority - Determine, on request, whether the applicant meet the requirement of the Regulations to be a class member; examine the circumstances concerning a foreign national who is inadmissible on grounds other than security, violating human or international rights, serious criminality, organized crime or health grounds, or does not meet the requirements of the Act or the Regulations; form an opinion to whether special considerations are justified by humanitarian and compassionate considerations relating to them or by public policy; and may grant an exemption from any applicable criteria or obligations of this Act; and impose the prescribed conditions, if any, on the foreign national. [Emphasis by Martineau J.]

More specifically, Item 45 of the Designation Modules provides the authority to be delegated to the PRRA Officer in the Quebec regions:

Item 45. Citizenship and Immigration Officer - Senior Immigration Examining Officer - Enforcement Officer - Immigration Advisor - Expertise Officer - Pre-Removal Risk Assessment (PRRA) Officer. [Emphasis by Martineau J.]

In light of the above, it is clear that the PRRA Officer has jurisdiction to make a determination under subsection 25(1) of the Act.

[9]        Counsel for the applicant suggested that Zolotareva should not apply here since, in his view, the delegation of authority is void ab initio.

[10]      Counsel suggested that if he admitted that the Minister of Citizenship and Immigration had the power to delegate the exercise of his decision-making authority to one of his employees under section 6 of the Act, that delegation would be unlawful if the employee delegated, in this case a PRRA Officer, ultimately answered to the CBSA, for which the Solicitor General of Canada is responsible, and not the Minister of Citizenship and Immigration.

[11]      I undertook a painstaking review of the delegation of authority, which had in fact been amended a few days before the decision in the case at bar, namely on April 26, 2004. The delegation of authority reads as follows:

                                                      Minister of Citizenship and Immigration

                                                                La Ministre de la Citoyenneté et de l'Immigration

                                                                    Dated at Ottawa, this 26th day of April 2004

                                                                       Signé à Ottawa ce 26^ième jour d'avril 2004

[12]      It has to be acknowledged that the applicant did not establish that there was any impediment to the exercise of this discretionary power of general delegation.

[13]      The amendment made on April 26, 2004, indicated that authority could be delegated to an officer without the latter necessarily being under the direction of the Minister in question. If any error had been possible, this amendment clarified the authority to delegate and clearly extended this authority to the officers described in sections 43.1 and 45, which clearly include the PRRA officer.

[14]      The fact that for some time, this PRRA Officer was attached to another branch of government, namely the CBSA, in my opinion is in no way a bar to the exercise of the Minister's discretion.

[15]      The applicant's suggestion that the presence of the PRRA officer in the same branch as the people responsible for deportations, and the possibility that the same officer might have to make decisions in a pre-removal risk assessment, as well as consider an application made on humanitarian and compassionate grounds, could be biased at the time he or she makes the decision is not supported by factual evidence, and in my opinion does not stand up to analysis.

[16]      On this point I determine that the decision of Martineau J. is applicable in the case at bar as regards the exercise of the Minister's discretion. On the legal basis of whether the Minister of Citizenship and Immigration had the authority to delegate responsibility to an officer who might ultimately have been responsible to the CBSA, the Minister's authority to delegate is clear and was exercised in an entirely legal manner in the case at bar.

[17]      Counsel for the applicant suggested that there was a reasonable apprehension of bias in this case. When a party raises this, the existing case law states that it should be raised at the first possible opportunity and that clear and precise grounds must be established: in order to support a finding that a reasonable apprehension of bias exists, it is not simply a matter of stating that the same officer can make decisions in various areas at the same time. The applicant did not provide any factual support to show that such an apprehension could exist in the case at bar. The PRRA decision and the decision on humanitarian and compassionate grounds are two different and separate decisions and the applicant did not establish that any evidence existed that would justify a reasonable apprehension of bias.

[18]      For some time the courts have at various points considered claims regarding a reasonable apprehension of bias. On each occasion, the courts have clearly stated that each case was sui generis and should be considered in accordance with the particular facts of the case (Jokhulall v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 319).

[19]      The suggestion that the fact that an officer could make different decisions based on different criteria can create a reasonable apprehension of bias as such is unfounded: what is more, the suggestion that such an apprehension of bias could be [TRANSLATION] "institutional", and that it automatically follows from the mere fact that different decisions can be made according to differing criteria, should in my opinion be dismissed.

[20]      In this regard, the applicant had a high burden of establishing a reasonable apprehension of bias: in this case, the criterion that applies is that of "an informed person, viewing the matter realistically and practically _ and having thought the matter through" ([1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1991] 1 S.C.R. 623).

[21]      As suggested by counsel for the respondent, the grounds of an apprehension as to the tribunal's impartiality must be serious. In Arthur v. Canada (Attorney General) (2001), 283 N.R. 346, (F.C.A.), at paragraph 8, the Federal Court of Appeal noted that a serious allegation "challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard".

[22]      Further, the exercise of the decision-making power on a humanitarian application, like the pre-removal risk assessment, has in the past been exercised from time to time by the same officer, and the case law has consistently established that this procedure is lawful.

[23]      Consequently, I conclude that the officer's decision on the application for residence on humanitarian and compassionate grounds is correct and is not vitiated by any error which could warrant intervention by this Court.

[24]      The following question was submitted for certification:

[TRANSLATION]

Could the Minister of Citizenship and Immigration delegate his decision-making authority under subsection 25(1) of the Immigration and Refugee Protection Act to Pre-Removal Risk Assessment (PRRA) officers responsible to the Canadian Border Services Agency, which is itself ultimately responsible to the Solicitor General of Canada?

[25]      Whereas this question has already been dealt with by this Court several times; whereas the situation appears moreover to have changed subsequently, since the parties informed the Court that the PRRA officers have returned to the control of the Minister of Citizenship and Immigration; whereas in the circumstances the situation can only be temporary; and whereas, most importantly, the amendment to the general delegation dated April 26, 2004, clarified this question for the future, it would not seem that this question is one of general importance as the parties suggested. Therefore, no question will be certified.

[26]      Whereas the question has also become moot, since the applicant has been returned to the United States, and thus an application for an exemption from the requirement of obtaining a permanent visa outside Canada based on humanitarian and compassionate grounds under subsection 25(1) of the Act is no longer valid.

ORDER

THE COURT ORDERS THAT:

-           The application for judicial review is dismissed;

-           No question is certified.

Certified true translation

Kelley A. Harvey, BCL, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   IMM-6356-04

STYLE OF CAUSE:                                                   BORIS KROTOV

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:                                             Montréal, Quebec

DATE OF HEARING:                                               March 3, 2005

REASONS FOR ORDER AND ORDER BY:         Blais J.

DATED:                                                                      April 1, 2005

APPEARANCES:

Lucrèce M. Joseph                                                        FOR THE APPLICANT

Suzon Létourneau                                                          FOR THE RESPONDENT

SOLICITORS OF RECORD:

Lucrèce M. Joseph                                                        FOR THE APPLICANT

1719 boul. René Lévesque Ouest

Montréal, Quebec

John H. Sims, Q.C.                                                       FOR THE RESPONDENT

Deputy Minister of Justice and

Deputy Attorney General of Canada

Department of Justice

Montréal, Quebec