Varela v. Canada (Minister of Citizenship and Immigration), 2001 FCT 483

Date: 20010515

Docket: IMM-5303-99

Neutral citation: 2001 FCT 483

BETWEEN:

JAIME CARRASCO VARELA

JAMILET DEL CARMEN GONZALEZ-CRUZ

JAVIER DE JESUS CARRASCO-GONZALEZ

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                REASONS FOR ORDER

DAWSON J.

[1]    On October 20, 1999, an immigration officer in the course of processing an application for admission to Canada on humanitarian and compassionate grounds determined that Jamie Carrasco Varela was a person described in paragraph 19(1)(j) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act"). In consequence, Mr. Carrasco was determined to be inadmissible to Canada.

[2]    At issue in this application for judicial review is whether that decision was tainted by a reviewable error. The applicants, Mr. Carrasco, his wife and son, also request in their written and oral submissions that the Court declare that the Minister of Citizenship and Immigration ("Minister") ought to process their application for landing under section 38 of the Act.

THE FACTS

[3]    Mr. Carrasco is a citizen of Nicaragua who served in its military from August of 1983 to October of 1989. Within two years of joining the army, Mr. Carrasco became a member of the Sandinista Front of National Liberation. While in the army he served as a guard at the "El Chipote" prison.

[4]    Mr. Carrasco arrived in Canada with his wife and son on August 1, 1991. They made refugee claims on the grounds of their political opinions and membership in a particular social group. In March of 1992, their claims were rejected by the Refugee Division of the Immigration and Refugee Board. The Refugee Division determined that Mr. Carrasco was a person described in Article 1F(a) of the United Nations Convention Relating to the Status of Refugees ("Convention") which states that the Convention does not apply "to any person with respect to whom there are serious reasons for considering that he has committed ... a crime against humanity".

[5]    In June of 1992, the Federal Court of Appeal denied leave to appeal from the decision of the Refugee Division.

[6]                Mr. Carrasco has sworn in an affidavit that neither he nor his counsel were made aware that Article 1F(a) of the Convention would be an issue before the Refugee Division. Mr. Carrasco's evidence has not been contradicted and, indeed, is supported by a transcript of the hearing before the Refugee Division now available and filed in this proceeding.

[7]                A Post-determination Refugee Claimants in Canada Class application was refused, as was an application made in 1992 on humanitarian and compassionate grounds. With the consent of the American authorities Mr. Carrasco and his family were removed to the United States.

[8]                The then Minister of Immigration authorized the issuance of a Minister's permit and Mr. Carrasco, with his wife and child, were then permitted to come into Canada as holders of a Minister's permit. They have held Minister's permits renewed annually since November 1993. The Minister's permits were all "Case Type: 86", as outlined in the relevant immigration manual.

[9]                In November of 1993, the applicants applied under subsection 114(2) of the Act for landing from within Canada on humanitarian and compassionate grounds.

[10]            In July of 1994, Canada Security Intelligence Service ("CSIS") officials conducted a screening interview of Mr. Carrasco. A CSIS report was submitted dated March 27, 1996 which, according to documents Mr. Carrasco's counsel has obtained under the Access to Information Act, R.S.C. 1985, c. A-1, "added nothing of substance to the material". In February of 1998, Mr. Carrasco was interviewed by an immigration officer at the Kitchener office of Citizenship and Immigration Canada ("CIC").

[11]            Five years after making their application under subsection 114(2) of the Act, the applicants brought an application in this Court for mandamus in respect of the outstanding humanitarian and compassionate application and for an order that the Minister process their application under section 38 of the Act. Before the Court rendered its decision, on October 20, 1999 a decision was made with respect to the humanitarian and compassionate application and a senior immigration officer determined that Mr. Carrasco was reportable as a person found to be a member of the inadmissible class described in paragraph 19(1)(j) of the Act. A report under paragraph 27(2)(a) of the Act was also written. On that same day, a letter was sent to Mr. Carrasco advising that while the Minister had, in 1993, determined to exempt Mr. Carrasco from the requirement of subsection 9(1) of the Act, he had not been exempted from meeting other statutory requirements of the Act, and that it had been determined that he was not in compliance with the Act because of his membership in a class of persons described in paragraph 19(1)(j) of the Act.

[12]            In reaching this conclusion, the immigration officer noted what were described as serious discrepancies between statements made by Mr. Carrasco in his Personal Information Form ("PIF") filed before the Refugee Division and those made to CSIS. The officer's reasons for finding Mr. Carrasco to be a member of the inadmissible class of persons were as follows:

The evidence in this case shows that Mr. Carrasco Varela joined the army and then the Sandinista Front of National Liberation (FSLN) of his own free will and remained a member from 1983-1989. It appears that subject was an effective guard at the prison as he was selected by his superiors for assignments as he also proved to be a trustworthy soldier. By his own testimony he was aware of the very large number of interrogations that were being conducted at the prison and of the torture, disappearance and the withholding of the necessities of life to the prisoners. Subject could not be classed simply as an onlooker of the events at the prison as the objectives of the prison guards was to extract information from the prisoners.

Mr. Carrasco Varela has admitted to being present when the capture of four persons who had kidnapped a soviet [sic] military attaché took place, and that although he carried weapons, he did not participate in the actual capture. Again subject was chosen along with four others to execute these prisoners as they were told to run while shots were fired at them. They were all killed. Subject denies that he every [sic] fired his weapon. It is difficult to believe that Mr. Carrasco Varela was present at these events and then accept his statement that he is innocent of taking part in the execution of these prisoners.

The human rights record from 1986-1989 on Nicaragua provided by Amnesty International details the events and the mistreatment of prisoners in prisons in Nicaragua, and provides testimony from people who were held prisoners at "El Chipote". This report has assisted in the research of this case.

THE ISSUES

[13]            On this application, Mr. Carrasco raises the following issues:

1.          Was Mr. Carrasco entitled to an oral interview with the senior immigration officer because he had requested one if his credibility was to be an issue?

2.          Was the Minister estopped from relying upon the finding of the Refugee Division?

3.          Did the senior immigration officer err in rejecting Mr. Carrasco's credibility and then using that rejection to prove conduct on the part of Mr. Carrasco?

4.          Did the senior immigration officer err in failing to consider the defences raised by Mr. Carrasco to the allegation that he was inadmissible?

5.          Did the senior immigration officer rely on extrinsic evidence to reach her finding of credibility?, and

6.          Do the applicants have the right to be landed or processed under section 38 of the Act, or does the respondent have to at least consider a recommendation to the Governor-in-Council under section 38 of the Act?

ANALYSIS

(i) Was Mr. Carrasco entitled to an oral interview?

[14]            Mr. Carrasco was interviewed by CSIS officials in July of 1994 and by an immigration officer in February of 1998. Notwithstanding his request, Mr. Carrasco was not interviewed by the senior immigration officer who rendered the decision at issue in this proceeding. Mr. Carrasco submitted that if there was a credibility concern, fairness required that he be given an interview so that his credibility could be properly assessed. Reliance was placed upon remarks of McKeown J. in Tehrankari v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1420, IMM-4024-96 (September 7, 2000) (F.C.T.D.) where, in setting aside a Minister's danger opinion Justice McKeown observed that "[i]f the Minister and his officials doubt any part of the applicant's evidence, they must provide the applicant with an oral hearing", and upon dicta of Heald J. in Kaberuka v. Canada (Minister of Employment and Immigration), [1995] 3 F.C. 252 (F.C.T.D.) who, when considering a conclusion of a senior immigration officer, noted that where credibility is assessed, normally an oral hearing and a fuller opportunity to know the case to be met is required.

[15]            In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada observed, at paragraph 33, that an oral hearing is not always required "to ensure a fair hearing and consideration of the issues involved". What is required is meaningful participation in the decision making process.

[16]            I am satisfied from Mr. Carrasco's counsel's written submission to the immigration officer that Mr. Carrasco and his counsel knew the issue to be addressed and the allegation against Mr. Carrasco. In that sense Mr. Carrasco had the opportunity to have meaningful participation in the decision making process. Further, the immigration officer's decision appears to have been made in largest part on the basis of admissions made by Mr. Carrasco as to his involvement in certain events and inferences drawn from those admissions.

[17]            In those circumstances, I am unable to conclude that Mr. Carrasco was denied a fair hearing because he was not interviewed by the decision-maker.

(ii) Was the Minister estopped from relying upon the finding of the Refugee Division?

[18]            Mr. Carrasco argued that the Minister's permit was originally issued to him on the basis of the Minister's acceptance of the humanitarian and compassionate considerations surrounding his case. Having accepted those submissions, the Minister was said to be estopped from now refusing to process Mr. Carrasco's application on humanitarian and compassionate grounds.

[19]            I do not find this submission to be persuasive. No reasons were given for the issuance of the Minister's permits. It would seem that the permits could have been issued for any of a number of reasons. I am not prepared to speculate on the reasons for their issuance for the purpose of finding a representation sufficient to ground a plea of estoppel.

[20]            Further, an application under subsection 114(2) of the Act for processing on humanitarian and compassionate grounds engages a two-step process. First, there is an assessment of whether an applicant should be exempted from the requirement of obtaining an immigrant visa outside of Canada. If a positive decision is made, there is then an assessment conducted of whether an applicant is admissible or otherwise meets the requirements for admission.

[21]            Here a positive humanitarian and compassionate decision was made at the first step of the analysis. I find nothing to indicate that Mr. Carrasco was to be exempted from the second step. His assertion to that effect is in fact contradicted by the terms on which the first Minister's permit was issued. Those terms were as follows:

To this end, once the removal order has been effected via the USA, the Minister has authorized the issuance of Minister's Permits for their re-entry into Canada. Once in the country, subjects are to be landed after they have complied successfully with all statutory requirements.

(iii) Did the immigration officer err in rejecting Mr. Carrasco's credibility and then relying upon that rejection to prove conduct on Mr. Carrasco's part?

[22]            Mr. Carrasco took issue with the following statements by the senior immigration officer: "Subject denies that he every [sic] fired his weapon. It is difficult to believe that Mr. Carrasco Varela was present at these events and then accept his statement that he is innocent of taking part in the execution of these prisoners."

[23]            Mr. Carrasco submitted that the officer found that because Mr. Carrasco's denial was not true the opposite was thereby established, that is, that Mr. Carrasco fired his weapon.

[24]            I find no merit in this submission. In my view, the immigration officer merely noted that Mr. Carrasco had not satisfied her that he was an innocent bystander at the execution of four prisoners.

(iv) Did the immigration officer err in failing to consider the defences raised by Mr. Carrasco to the allegation that he was inadmissible?

[25]            At the material time, paragraph 19(1)(j) of the Act provided:

[26]            The statute expressly recognizes that to fall within paragraph 19(1)(j) of the Act, the crime, if it had been committed in Canada, must have at that time constituted an offence against the law of Canada. It follows that an individual may rely upon defences provided in the Criminal Code of Canada, R.S.C. 1985, c. C-46 to establish that conduct would not have constituted an offence in Canada.

[27]            In R. v. Finta, [1994] 1 S.C.R. 701, the Supreme Court of Canada recognized that the defences of obedience to superior orders and compulsion were, as a matter of law, available to members of the military or police forces in prosecutions for war crimes and crimes against humanity.

[28]            In the present case, in addition to stating that he refused to participate in the execution of prisoners (and that he was hit, threatened with a gun, arrested, interrogated and detained as a result of that refusal), Mr. Carrasco relied upon the defences of obedience to superior orders not manifestly unlawful, and of compulsion.

[29]            There is no indication that those defences were given any consideration by the immigration officer. It was submitted on the respondent's behalf that the immigration officer was not obliged to summarize all of the arguments placed before her by Mr. Carrasco, that it is reasonable to conclude that the submissions were considered and that what is important is that the officer recorded the evidence which she relied upon.

[30]            In Baker, supra, the Supreme Court of Canada found that due to the profound importance to an individual of a decision made pursuant to subsection 114(2) of the Act, reasons are required. In the present case, the requirement to give reasons was met by the provision of the senior immigration officer's notes.

[31]            One of the purposes of the requirement that reasons be provided by decision-makers is to allow the parties to satisfy themselves that applicable issues have been properly considered. This has great importance in an application for judicial review of a discretionary decision because while those decisions are generally given significant deference, discretion is to be exercised in accordance with the principles of administrative law, including the requirement that the decision-maker have regard to relevant factors.

[32]            In the present case, not only do the notes of the senior immigration officer not make any reference to the defences raised by Mr. Carrasco, but they do not refer to the facts asserted by Mr. Carrasco which were relevant to those defences.

[33]            In the absence of any reference to either the legal or factual basis of Mr. Carrasco's defences, I conclude that the senior immigration officer's reasons do not stand up to a somewhat probing examination. The absence of reference either to the defences or to their factual underpinning leads me to conclude that the decision was made without regard to relevant considerations. Hence the decision was unreasonable and it should be set aside.

[34]            Because the matter will be remitted to a different immigration officer, I think it prudent to comment on the two remaining procedural issues raised by Mr. Carrasco without commenting on the merits of his position.

(v) Was there reliance upon extrinsic evidence?

[35]            The senior immigration officer referred to discrepancies between statements made by Mr. Carrasco in his PIF and those made to CSIS, as contained in a CSIS report. Mr. Carrasco had unsuccessfully sought production of the CSIS material. It was submitted that it was a reviewable error to assess Mr. Carrasco's credibility against material never disclosed to him.

[36]            In response, it was argued on the Minister's behalf that the notes from the Kitchener interview showed that discrepancies were put to Mr. Carrasco and that he was given the opportunity to reply to the concerns. This was said to comply with the requirements of fairness.

[37]            The duty of fairness is contextual, but as noted in Baker, supra, it requires the ability to meaningfully participate in the decision-making process. This is particularly true where the decision has profound effect upon an individual. If Mr. Carrasco's credibility is to be at issue, and if it is to be assessed at least in part upon the basis of answers given on prior occasions (answers which are said to be discrepant), it seems to me that meaningful participation requires that the content of those prior answers be provided to Mr. Carrasco. Otherwise, how is he to argue in any meaningful way whether the answers are discrepant or whether an explanation exists for any discrepancies? Provision of the totality of his earlier remarks might well also enable affirmative arguments to be advanced, for example an argument as to how consistent his remarks have been over time if that is in question. Mr. Carrasco was the source of the prior statements, therefore it seems that no issue of confidentiality could arise. There would seem to be no good reason why Mr. Carrasco should not be advised at least as to the contents of his prior statements so as to provide him with the ability to participate meaningfully in the decision-making process.

(vi) Do the applicants have the right to be landed or processed under section 38 of the Act, or does the Minister have a duty to at least consider a recommendation under section 38 of the Act?

[38]            In this proceeding the parties disputed the applicants' entitlement to a decision under section 38 of the Act. The Minister noted that in this application the relief sought was for an order that the decision of the senior immigration officer with respect to landing be set aside. The Minister therefore submitted that the applicants have not requested an exercise of discretion under section 38 of the Act.

[39]            The respondent correctly described the relief sought in this proceeding and, as set out above, an order will issue setting aside the decision of the senior immigration officer. However, as this issue was fully argued before me, the parties are, I believe, entitled to my view of the applicants' entitlement to processing under section 38 of the Act. This determination requires a review of the history of the parties' dealings.

[40]            The applicants have been in possession, since 1993, of Minister's permits bearing the code "Case Type: 86". It is common ground, with reference to the relevant immigration manual, that this code indicates that the applicants' case has been approved for processing within Canada.

[41]            In 1993, the applicants applied for landing under subsection 114(2) of the Act, paying, Mr. Carrasco said, the required fee. Over five years elapsed without any determination being made on the section 114 application and so the applicants brought an application before this Court for mandamus. In that proceeding, a declaration apparently was sought as to the applicants' rights under section 38 of the Act. The issue was certainly raised in the applicants' record.

[42]            The decision at issue in the present proceeding was made before the application for mandamus was heard by the Court, and so the application for mandamus was dismissed on consent, the request for mandamus being moot. The respondent now says that no request for an exercise of discretion under section 38 of the Act has been made, and that in any event, section 38 of the Act does not provide an absolute right to landing.

[43]            Subsection 38(1) of the Act provides as follows:

[44]            Subsection 38(2) of the Act is not relevant to this proceeding.

[45]            It can be seen that a Minister's permit allows persons inadmissible under section 19 of the Act, or who may be reported under subsection 27(2) of the Act, to come into or remain in Canada. CIC's Inland Processing Manual states that immigration policy allows for Minister's permits to be issued where:

(a)         there are compelling grounds to allow the person to enter and, or, remain in Canada, keeping in mind the objectives of the Act;

(b)         the need for the person to come into or remain in Canada outweighs the risk of their presence in Canada; and

(c)         discretionary entry or reinstatement of visitor status are not appropriate alternatives.

[46]            To determine whether the applicants are entitled to be processed under section 38 of the Act, there are two issues to consider: first, has a right to apply for consideration under section 38 of the Act accrued to the applicants?; and second, have the applicants sought to exercise that right so that a duty arose at law for the respondent to consider the applicants for landing under section 38 of the Act?

[47]            The applicants have been in Canada continuously for at least five years on Minister's permits. I find, therefore, that a right accrued to them to apply for consideration under section 38 of the Act.

[48]            As to whether the applicants have sought to exercise that right, I agree with the respondent that the general rule is that there must be a prior request for the exercise of a discretion (see: Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (F.C.A.) and Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 (F.C.T.D.)).

[49]            In order to consider whether the applicants have made a proper prior request for the exercise of discretion under section 38 of the Act, the scheme of the Act and the Regulations must be reviewed.

[50]            In addition to subsection 38(1) of the Act, other relevant provisions, in my view, are found in subsection 114(2) and section 115 of the Act, section 2.1 of the Immigration Regulations, 1978, SOR/78-172 ("Regulations"), section 2 of the Immigration Act Fees Regulations, SOR/97-22 ("Fees Regulations") and item 18 of the Schedule to the Fees Regulations.

[51]            Subsection 38(1) of the Act confers on the Governor-in-Council broad discretion, notwithstanding any other provision of the Act or the Regulations, to authorize the landing of a person. "Landing" is defined in subsection 2(1) of the Act to mean "lawful permission to establish permanent residence in Canada".

[52]            Subsection 114(2) of the Act authorizes the Governor-in-Council, by regulation, to authorize the Minister to exempt any person from any regulation made under the Act, or otherwise facilitate the admission of a person, where satisfied that admission should be facilitated owing to the existence of compassionate or humanitarian considerations. This is a more restricted discretion than that granted by section 38 of the Act. It is more restricted because the decision-maker is bound by the Act and must be satisfied as to the existence of compassionate or humanitarian grounds. "Admission" as used in subsection 114(2) of the Act is defined in subsection 2(1) of the Act to mean "entry or landing".

[53]            By section 2.1 of the Regulations, the Minister is authorized to exercise the discretion granted under subsection 114(2) of the Act to the Governor-in-Council.

[54]            Section 115 of the Act in subsection (a) empowers the Minister to, by order, establish forms as the Minister deems necessary for the purposes of the administration of the Act. No forms have been provided for the purpose of requesting the exercise of discretion under section 38 of the Act.

[55]            Section 2 of the Fees Regulations states that in addition to any other requirement of the Act or the Regulations, an application is not a duly completed application until the prescribed fees in relation to it are paid. Item 18 to the Schedule to the Fees Regulations deals with the processing fee for a request to the Governor-in-Council pursuant to subsection 38(1) of the Act. It expressly provides that the fee is payable "[a]t the time the person is notified that an immigration officer has decided to process the recommendation".

[56]            From these provisions I take that:

i)           An application under subsection 38(1) of the Act is in substance an application for landing;

ii)          An application under subsection 114(2) of the Act is an application for admission which is capable of meaning an application for landing; and

iii)          It is an immigration officer who decides whether to process a recommendation under subsection 38(1) of the Act.

[57]            This latter conclusion is consistent with the guidance provided by Chapter 12 of the Inland Processing Manual, where it is stated at paragraph 8.2.1:

A38(1) landing

[...]

Landing by operation of A38(1) is not automatic. Immigration officers review cases at the end of the five-year period. Their review focuses on need and risk factors (see Section 4, Section 5, Section 6 and Section 7). Any unfavourable change in the balance of these factors (i.e. need has decreased and risk has grown) may be reasons to not process the case for landing.

Note: Immigration officers should discover most such cases before the end of the five year period (see Section 3.9).

If the review is favourable, the immigration officer writes a memorandum recommending landing. The memorandum must clearly identify the client(s) and guarantor(s) by name and FOSS client identification numbers. [underlining added]

[58]            Within that statutory framework, did the applicants request the exercise of discretion under section 38 of the Act so that a duty arose upon the Minister to consider whether to exercise that discretion?

[59]            The applicants filed an application on humanitarian and compassionate grounds in November of 1993. As they were granted the visa exemption (as shown by the designation "Case Type: 86" on their Minister's permits), their application became an application for landing. Their application then remained outstanding for over five years, giving the applicants the right to seek consideration under section 38 of the Act. In January of 1999, they sought mandamus requesting consideration of their application on the basis of section 38 of the Act. While that proceeding was not adjudicated upon, I conclude from it that the applicants either complied with the requirement that a prior request for an exercise of discretion be made, or that a request for the exercise of such discretion can be implied in the circumstances (see, for example, Nguyen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 232 (F.C.A.)). In either event, it follows that a duty arose on the Minister to consider whether to recommend the exercise of discretion under section 38 of the Act in respect of the applicants.

[60]            Notwithstanding that I have concluded that a prior request for the exercise of discretion was made, or can be implied in the circumstances, I note as well that a legitimate expectation that an immigration officer would consider the applicants' case for landing may well have existed so that the duty of fairness required such consideration (see: Baker, supra). This expectation would arise from the fact that the Inland Processing Manual directs immigration officers to review cases at the end of the five-year period, and from the reference in the Schedule to the Fees Regulations to the effect that there is to be notification to a person that an immigration officer has decided to process the section 38 recommendation.

CONCLUSION

[61]            For the reasons set out herein, the application for judicial review will be allowed.

[62]            Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these reasons. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an order will issue allowing the application for judicial review and remitting the matter for redetermination by a different immigration officer.

"Eleanor R. Dawson"

                                                                                                                     Judge                          

Ottawa, Ontario

May 15, 2001