Date: 20040122
Docket: IMM-63-03
Citation: 2004 FC 91
Ottawa, Ontario, this 22nd day of January, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
ZSOLT NACSA, EVA NACSA AND INEZ NACSA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Zsolt Nacsa, Eva Nacsa and Inez Nacsa seek judicial review of the decision of immigration officer, Paulette M. Johnson (the "officer"), dated November 28, 2002. In that decision, the officer denied the applicants' request for an exemption pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), to apply from within Canada for permanent residence on humanitarian and compassionate ("H & C") grounds. The applicants seek an order setting aside the November 28, 2002 decision, as well as an order remitting their H & C application back for consideration by another officer.
BACKGROUND
[2] The applicant, Mr. Zsolt Nacsa, his spouse, Mrs. Eva Nacsa and their daughter, Ms. Inez Nacsa, are all citizens of Hungary. They first came to Canada in December 1997 and applied for Convention refugee status. Their claim was based on Mr. Nacsa's connection with the ethnic Roma community in Hungary. Their refugee claim was denied on August 5, 1999. An application to the court for leave to judicially review the refugee decision was dismissed on November 22, 1999.
[3] On March 19, 2000 the applicants' conditional departure order became enforceable and they were to leave Canada within a specified period of time. They did not voluntarily leave within that time period, therefore the departure order turned into a deportation order. They were deported from Canada on August 15, 2000. Prior to leaving Canada, the applicants submitted their H & C application on July 16, 2000.
[4] The applicants returned to Canada on November 17, 2000. They made a second refugee claim in December 2000. As of February 2003, the date on which Mr. Nacsa swore his affidavit in this proceeding, the applicants' second refugee claims were waiting to be heard by the Immigration and Refugee Board.
[5] The officer requested updated information from the applicants in relation to their H & C application by letter dated September 27, 2002. The applicants provided updated information in October 2002.
[6] Mr. Nacsa owns a hardwood installation business entitled, Zedesz Hardwood. It appears that Mr. Nacsa established this business in or around February 2002. Ms. Nacsa works at a retail store. They had both undertaken ESL courses and Ms. Nacsa took a retails sales training course. Their daughter, who was born in Hungary in 1995, attended kindergarten in Toronto.
The Officer's Decision
[7] The officer refused the applicant's H & C application by letter dated November 28, 2002. The officer did not interview the applicants. The notes prepared by the officer form the reasons for the decision currently under review.
[8] The officer determined that the applicants had not shown that they would face unusual, undeserved or disproportionate hardship should they be required to leave Canada. The officer was not satisfied that hardship existed in the two areas alleged by the applicants, namely that Mr. Nacsa would not lose the business he had originally established in Canada and that the family would not be at risk in Hungary. The officer noted that the applicants had shown their "disregard" for Canadian laws by returning three months after being removed, without the consent of the Minister. Further, the officer found that the applicants had not demonstrated that they were significantly established in Canada and that the evidence indicated that the child, Inez Nacsa, would not be adversely affected by a negative decision.
APPLICANTS' SUBMISSIONS
[9] The applicants argue that the officer did not assess their application in accordance with the principles of procedural fairness. They argue that pursuant to the former Immigration Act, R.S.C. 1985, c. I-2 (the "former Act"), they did not require the consent of the Minister to return to Canada, as they returned due to their fear of persecution in Hungary and made a second refugee claim. They submit that the officer's comment in her reasons that the applicants showed a disregard for Canadian laws when they returned to Canada without the Minister's consent reveals a prejudicial attitude towards the applicants that amounts to a reasonable apprehension of bias. Further, they argue that this fact was of "no material relevance" to the officer's decision.
[10] Next, the applicants argue that the officer ignored evidence of their establishment in Canada after their return in November 2000. The officer stated in her notes that Mr. Nacsa no longer operated the business that he had when he first left Canada, however, the applicants submit that their additional submissions of October 2002 included Mr. Nacsa's registration of a successor business in Ontario. The applicants submitted evidence that Mr. Nasca's business was hardwood flooring, the same as his original business, and that his company had anticipated contracts already in place.
[11] Third, the applicants argue that the officer failed to consider the totality of the evidence in relation to risk faced in Hungary and state protection. The applicants say that this is apparent in two ways, first in the officer's failure to specifically analyse the applicant's detailed submissions about hardship in Hungary due to their perceived connection with the Roma community. The applicants say that the officer should have referred to case law from this court dealing with the issue of state protection in Hungary. Secondly, the applicants submit that the officer failed to assess the applicant's Personal Information Form ("PIF") narrative, dated April 23, 2001 which was submitted to the Immigration and Refugee Board and contained reference to alleged persecutory events that occurred in Hungary after the applicants returned there in August 2000.
[12] Upon the hearing of this matter, applicants' counsel acknowledged that the PIF was not provided to the officer by the applicants, however, he submitted that the officer had an obligation to inform herself about the content of the applicants' new refugee claim. Counsel also argued that the officer had a duty to defer her decision until the applicants' second refugee claim had been determined.
[13] Also at the hearing, applicants' counsel focussed on the lack of risk assessment in this case, and argued that such risk assessment must be obtained by an officer in every H & C case where risk is alleged. I permitted both the applicant and respondent to present post-hearing submissions on this point to the Court, as well as submissions on a certified question.
[14] In support of their submission that an officer must obtain a risk assessment in situations where an applicant has left Canada and returned to make a new refugee claim, the applicants rely on Arduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468 (T.D.) as well as section 13 of the current immigration policy guidelines, IP-5 Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (the "immigration guidelines"), dealing with H & C applications.
RESPONDENT'S SUBMISSIONS
[15] The respondent submits that the officer's reasons do not demonstrate a reasonable apprehension of bias or any other breach of the principles of procedural fairness. The respondent submits that pursuant to the former Act, subsections 46.01(1) and (5) and subsection 55(1), the applicants were eligible to make a second refugee claim, however, since they had been removed from Canada by a deportation order, rather than leaving Canada voluntarily pursuant to a departure order they required the written consent of the Minister in order to gain re-entry to Canada. The applicants did not obtain this consent.
[16] Therefore, the respondent argues that the way in which the applicants left Canada and subsequently returned was a relevant, although not determinative, factor in assessing their H & C application. The respondent relies on the Federal Court of Appeal decision, Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.), where it was held that the manner of entry to Canada of an immigrant was a relevant consideration in H & C applications.
[17] The respondent argues that the officer's decision was made in accordance with the law, as well as immigration policy guidelines. These guidelines, while not law, have been held to be of great assistance to the Court: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 (C.A.). The respondent submits that the immigration guidelines outline that the essence of H & C exemption is hardship which must be unusual, undeserved or have a disproportionate impact on an applicant due to their personal circumstances. The respondent says that Legault, supra, confirms the discretionary nature of the H & C exemption.
[18] Next, the respondent submits that the applicants have not established that the officer ignored relevant evidence, fettered her discretion or ignored the objectives of IRPA. Further, the respondent argues that the applicants have failed to demonstrate how any alleged bias or unfairness affected the officer's consideration of the evidence on establishment.
[19] The respondent submits that the officer clearly considered the applicants' updated submissions. The officer in her reasons referred to Mr. Nacsa's employment and business in Canada between January 2001 and October 2002. The respondent submits that the officer in her affidavit attests to the fact that she considered Mr. Nacsa's registered business, Zedesz Hardwood, operating for less than a year when she made her decision. The officer in her reasons also referred to Mrs. Nacsa's employment and courses taken to upgrade her skills.
[20] Third, the respondent submits that the applicants have failed to demonstrate that the officer ignored their evidence relative to country conditions in Hungary and the alleged risk that they would face if returned there. The respondent argues that in their updated submissions of October 2002, the applicants made no mention of the hardship that they would face if returned to Hungary. The only evidence of undue hardship before the officer was contained in their first submissions of July 2000. The respondent says that it is clear from the officer's reasons that she considered these first submissions.
[21] The respondent argues that the applicants put forth two grounds related to hardship. The first being that Mr. Nacsa would lose his cleaning business, Nasca 60 Cleaning. Contrary to the applicants' submissions, the respondent says that there was no evidence before the officer that Mr. Nacsa's new business, Zedesz Hardwood, was a "successor business", or that Nasca 60 Cleaning continued to operate after the applicants left Canada in August 2000. The respondent submits that it was reasonable, therefore, for the officer to conclude that this alleged ground of hardship no longer existed.
[22] The respondent submits that the officer did not err in her assessment of the second alleged ground of hardship, namely, facing undue hardship in Hungary as known Roma associates. The officer was under no obligation to conduct an independent review of case law that was not before her. Further, the officer was under no obligation to review any alleged errors in the Immigration and Refugee Board decision, as this is not the role of an H & C officer, but of the court. In this case, the court had previously denied the applicants' application for leave to judicially review this first refugee decision, signalling that there was no arguable issue involved in the negative refugee decision.
[23] Upon the hearing of this matter, the respondent's counsel submitted that the PIF was not before the officer, and that the onus was on the applicant to put their best case forward, ensuring that information that supported their case was presented to the officer.
[24] The respondent also submitted that there is no authority for the proposition that a H & C officer must defer their decision for a pending refugee claim, or must consider the merits of a refugee claim. Further, the respondent argued that there is no authority for the applicants' submission that the officer had a duty to obtain a risk assessment opinion.
ISSUES
[25] 1. Were the applicants denied procedural fairness in the assessment of their application, and in particular, do the officer's reasons for decision reveal a reasonable apprehension of bias?
2. Did the officer ignore evidence in relation to her assessment of establishment in Canada or her assessment of risk and state protection in Hungary?
ANALYSIS
[26] In my opinion, the applicants have not demonstrated a reasonable apprehension of bias on the part of the deciding officer in this case. Justice L'Heureux-Dubé in Baker, supra, discussed the issue of bias in the context of H & C decisions, and stated as follows at paragraphs 45-46:
Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker. The respondent argues that Simpson J. was correct to find that the notes of Officer Lorenz cannot be considered to give rise to a reasonable apprehension of bias because it was Officer Caden who was the actual decision-maker, who was simply reviewing the recommendation prepared by his subordinate. In my opinion, the duty to act fairly and therefore in a manner that does not give rise to a reasonable apprehension of bias applies to all immigration officers who play a significant role in the making of decisions, whether they are subordinate reviewing officers, or those who make the final decision. The subordinate officer plays an important part in the process, and if a person with such a central role does not act impartially, then the decision itself cannot be said to have been made in an impartial manner. ....
The test for reasonable apprehension of bias was set out be Grandpré J., writing in dissent, in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [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."
[27] Applying the test addressed in Baker, supra, an informed person, viewing the matter realistically and practically would not conclude that the officer failed to approach the assessment of the applicants' H & C application with an open and impartial mind. The notes of the officer, which the applicants claim reveal bias, are as follows:
...The family was removed from Canada in August 2000. They showed their disregard for Canadian laws when they returned 3 months later without the consent of the Minister....
[28] The applicants submit that when they returned to Canada they did not require the consent of the Minister, as they had a genuine fear of persecution in Hungary and were eligible to make a second refugee claim. In my view, this cannot be accepted in light of the former legislative scheme, particularly section 55 of the former Act. While they were not ineligible to make a refugee claim by virtue of the 90-day exception provided in subsections 46.01(1) and (5) of the former Act, it cannot be said that they adhered to Canadian immigration laws in returning to Canada. They were in violation of section 55(1) of the former Act, as they did not obtain written consent from the Minister to return to Canada, after having been removed from Canada pursuant to a deportation order.
[29] I agree with the respondent's submission, that the manner in which an applicant has dealt with their immigration matters may be a relevant, but by no means determinative, factor in assessing an H & C application. Justice Décary's reasoning in Legault, supra, supports this conclusion. In that case, he stated at paragraph 19:
In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorized to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions.
[30] The officer, therefore, did not exhibit a reasonable apprehension of bias in referring to this factor. Further, the officer articulated many other reasons for denying the H & C exemption. A reading of the reasons as a whole demonstrates that the applicants' re-entry into Canada without Ministerial consent was not the determinative factor in this application.
[31] Next, in regards to the applicants other arguments, they are not persuasive. The reasons of the officer indicate that she made her decision having regard to the totality of the evidence. She referred to Mr. Nacsa's earlier and more current business endeavours. The fact that she did not regard his current hardwood flooring business as a successor business to his previous cleaning business of a different name and nature, does not indicate that she failed to appreciate all the evidence before her. She noted that the business that he had originally owned when he first made his H & C application was no longer in existence. She concluded therefore that one of the alleged grounds of hardship was no longer applicable.
[32] While there was no evidence before the officer that Mr. Nacsa continued, upon returning to Canada in November 2000, to operate his cleaning business, there was a good deal of evidence that beginning around February 2002, he operated another sole proprietorship, Zedesz Hardwood. In my view, the officer considered such evidence. Her reasons refer to Mr. Nacsa's employment installing hardwood flooring and the subcontracting work that he had received in 2002. In the end, she found that this, among other factors, was not enough to show significant establishment in Canada. This finding was reasonably open to her.
[33] With regards to the issue of the officer's analysis of risk in Hungary and state protection, in my opinion, the officer did not err in this area. The officer noted in her reasons that the Immigration and Refugee Board had found that there was state protection for the applicants in Hungary. This was a relevant consideration. The applicants have not demonstrated that the officer failed to consider their original H & C submissions which set out the poor social conditions, rampant discrimination and prejudice, and occasional physical abuse against Roma in Hungary. Further, the officer was under no obligation to search out case law that was not presented by the applicants.
[34] The officer found that there was no allegation that Mr. Nacsa and his family had faced disproportionate hardship or sanction in Hungary since returning there in August 2000. In my view, while this conclusion would be erroneous in light of the allegations contained in Mr. Nacsa's PIF, that he was beaten by skinheads after returning to Hungary in August 2000 due to his perceived association with the Roma, it appears from Mr. Nacsa's affidavit and the tribunal record that this PIF narrative from his second refugee claim was not before the officer when she made her H & C decision.
[35] Applicants' counsel acknowledged that the PIF was not provided to the officer by the applicants, however, he submitted that the officer had an obligation to inform herself about the content of the applicants' new refugee claim. The applicants' submission in this regard is without merit. The onus was on the applicants to provide the evidence in support of their H & C application, the officer had no duty to seek out evidence that was not tendered by the applicants. Nor am I satisfied that the officer had a duty to defer her decision until the applicants' second refugee claim had been determined. The applicants have provided no statutory or case authority in support of this proposition.
[36] I am not satisfied that the decision in Arduengo, supra, supports the applicants' claim that the officer in this case was under an obligation to obtain a risk assessment prior to determining their H & C application. In that decision, the court considered whether deportation to a country where the applicants claimed a risk to their lives engaged sections 7 and 12 of the Canadian Charter of Rights and Freedoms, where there had been a prolonged lapse of time between the applicants' failed refugee claim and a significant change in country conditions. Cullen J., in that case, concluded that the H & C application process provided a safeguard to unsuccessful refugee claimants, so that events that may have occurred after a refugee claim related to risk in a country of origin, could be considered in an H & C application.
[37] Here, risk was in fact assessed by the officer, based on all the information submitted by the applicants. Arudengo, supra, does not stand for the proposition that an H & C officer has a duty to send every application involving alleged risk to a Pre-Removal Risk Assessment ("PRRA") officer.
[38] Moreover, the immigration guidelines relied on by the applicants in support of this argument do not satisfy me that the officer had an obligation to obtain a PRRA officer's risk assessment in this case. The officer requested updated submissions from the applicants in September 2002. In response to this request, the applicant did not provide further information about the risk which they alleged they would face if returned to Hungary. While the immigration guidelines instruct that a risk assessment done by a PRRA officer will be the ordinary route for H & C applications which involve claims of personalized risk, such guidelines do not bind officers, as they lack the force of law. As stated by Lutfy J. (as he then was) in Mittal (Litigation Guardian of) v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 727 (T.D.)(QL), at paragraph 2:
...Guidelines, of course, must be used with care. They can serve as " 'general policy' or 'rough rules of thumb' " to structure the discretion conferred upon the visa office: Yhap v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 722 (F.C.T.D.) at 740. Guidelines, however, should not fetter the visa officer's exercise of discretion by crystallizing into binding and conclusive rules: Dawkins v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 639 (F.C.T.D.) at 649....
If Parliament had intended for a PRRA officer risk assessment to be a part of every H & C decision where personalized risk is claimed, then such requirement would be found in IRPA or the Immigration and Refugee Protection Regulations, SOR/2002-227.
[39] The applicant submitted that the following question be certified: Does an immigration officer considering an application made on humanitarian and compassionate grounds have a duty to obtain a risk opinion where the applicants have also made refugee claims that have not yet been determined or the facts therein assessed in a risk opinion?
[40] The respondent submits that the question should not be certified on three grounds. First, the question has already been addressed by the Court in X.M.A.A. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1038 (T.D.)(QL). Second, the question proposed by the applicants would not be determinative of the appeal in this case, given that the officer's decision turned on insufficient evidence and the applicants had failed to provide updated submissions related to their alleged fear of return to Hungary. Third, the question would not transcend the interests of the parties to this litigation, as it is limited to the facts of this case.
[41] In my opinion, the proposed question should not be certified. The decision in X.M.A.A., supra, addresses this issue. In that decision, Justice Blanchard found that there is no duty to obtain a separate, risk assessment from a PCDO (PRRA) officer in the H & C context where risk has already been assessed in a prior refugee hearing and determination. The applicants in the present case had already had their claimed risk assessed in the context of a negative refugee determination. While the applicants had a pending, second refugee claim before the Board, such claim was made within a modest period of time and the circumstances in Hungary had not changed in any significant manner since their first refugee claim. Additionally, the applicants had the opportunity to present updated submissions in relation to risk, but failed to do so. The officer accordingly made a H & C decision that was reasonably open to her on the evidence that had been submitted. Therefore, the question requested for certification would also not be determinative of the appeal. In light of these considerations, I decline to certify a question of general importance.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed;
2. No question is certified.
"Richard G. Mosley"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-63-03
STYLE OF CAUSE: ZSOLT NACSA, EVA NACSA AND INEZ NACSA
v. THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 14, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: January 22, 2004
APPEARANCES:
Daniel M. Fine FOR THE APPLICANTS
Matina Karvellas FOR THE RESPONDENTS
SOLICITORS OF RECORD:
DANIEL M. FINE FOR THE APPLICANTS
North York, Ontario
MORRIS ROSENBERG FOR THE RESPONDENTS
Deputy Attorney General for Canada
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