[1] This application is for judicial review under subsection 82.1(2) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act") with respect to a decision of Immigration Counsellor Debbie Salmon ("the Immigration Officer"), dated December 11, 2001. She denied the Applicants' application pursuant to s. 114(2) of the Act for an exemption from the requirement of subsection 9(1) of the Act on the grounds that sufficient humanitarian and compassionate grounds did not exist to warrant special relief on their behalf.
[2] The Applicants are citizens of Argentina and parents of four children, the oldest of which is a 12 year-old Canadian citizen born in Canada.
[3] They first entered Canada in 1988 and made refugee claims, which were denied. The couple was considered part of the Refugee Backlog when that program was announced in 1989. They made two applications on humanitarian and compassionate grounds, one in 1990, which was denied, and another in 1992, just prior to removal ("the 1992 H & C Application). According to the procedures existing at that time, they would have been entitled to a "pre-removal" H & C review as members of the backlog, and it is alleged that the 1992 application should have been considered as such. However, they did not receive a response prior to being removed on February 27, 1992. They returned to Argentina with their eldest daughter who had been born in Canada.
[4] It is alleged that shortly after they left Canada, the male Applicant's mother-in-law, residing in Canada, received a letter from Immigration informing them that their second H & C application, which was submitted in January 1992, had been approved. Depressed when realising that it was too late, the mother-in-law allegedly threw the letter out and did not tell the Applicants about it for about a year.
[5] The Applicants' family investigated and attempted to resolve the matter, but without success. They were advised by the Canadian Embassy in Buenos Aires that they had to see the approval letter before they would further process. After numerous attempts to explain the situation to the Canadian Embassy, the Applicants returned to Canada in November 2000 with their four children, three of whom were born in Argentina.
[6] Upon arrival, the Applicants again made refugee claims that were denied. They retained a lawyer and instructed her to contact Immigration Canada to obtain information about the alleged successful previous 1992 H & C Application. After several inquiries with different immigration offices, the lawyer spoke on January 23, 2001 to a Mr. Ed Dunn, an immigration officer in charge of requests made pursuant to the Privacy Act. They were told that the Applicants' previous file had been destroyed. Mr. Dunn then proceeded to read her information about their case contained in computer notes and stated that there was no record of any acceptance of the 1992 H & C Application.
[7] It is alleged however that much of the information contained in the computer notes was inaccurate. Example, the notes stated that the Applicants had submitted their 1992 H & C Application on November 17, 1992, by that time they had already returned to Argentina; also, that the Applicants had been removed from Canada on May 23, 1993; they had already been returned to Argentina for over a year.
[8] On August 1, 2001, the Applicants applied to Immigration Canada for an exemption from the immigrant visa requirement based on humanitarian and compassionate grounds. Their lawyer included with the application her submissions which included the gist of the information she had been provided by Mr. Dunn.
The application was based on the following factors: (a) that they had previously been given approval-in-principle to remain in Canada on humanitarian and compassionate grounds but had never been able to convince immigration officers of this fact; (b) the interests of their Canadian-born child; (c) the social and economic hardship of returning to Argentina; and (d) their establishment in Canada.
[9] By letter dated December 11, 2001, the application for landing based on humanitarian and compassionate grounds was denied. The letter contained no reasons for the decision. On December 20, 2001, counsel wrote requesting reasons which were provided to the Applicants on January 17, 2002, some time after they had initiated this application for leave and for judicial review filed on January 2, 2002.
[10] The Immigration Officer's notes disclose that the application on humanitarian and compassionate grounds was refused for the following reasons: (1) the officer concluded that it was in the best interests of the Canadian-born child and the other children that they accompany their parents wherever they may go, and that they live in Argentina with their parents; (2) the officer determined that there was insufficient evidence to show that the male Applicant would be unable to secure employment in his field (electrician) in Argentina or that his wife would be unable to continue working as a homemaker in Argentina; and (3), the officer was not satisfied that the family was so established here that it would cause undue hardship for them if they had to return to Argentina, nor for their extended family left behind in Canada.
[11] Accordingly, the officer concluded that on the facts of the case, a waiver of s. 9(1) of the Act was not warranted since there would not be any "disproportionate, undue or undeserved hardship" that the Applicants comply with the requirements of s. 9(1) of the Act.
[12] The central issue is whether the Immigration Officer violated the rules of fairness and natural justice by failing to disclose extrinsic information pertaining to the 1990 and 1992 H & C Applications and failed to allow meaningful participation to the Applicants.
[13] It is submitted that the Immigration Officer erred by failing to disclose extrinsic information pertaining to the 1990 and 1992 H & C Applications and to provide them with an opportunity to respond.
[14] Following her own investigation, the Immigration Officer found a document in a backlog file which seemed to indicate that a previous review of the Applicants' case in 1990 resulted in a negative decision. It is submitted that having looked for and found this information on her own, and since it did not coincide with the Applicants' statements, the Immigration Officer, in all fairness, was under an obligation to disclose it to the Applicants for their comment.
[15] The Applicants note that on the face of her decision, the Immigration Officer appears to suggest that the new information pertaining to previous applications on humanitarian and compassionate grounds was not a relevant consideration to the present determination. To them, it clearly appears that this factor was indeed relevant; it takes up many pages of notes and is the subject of various e-mails, voice mails and faxes; that this extrinsic information about the immigration history could have affected her decision. For that reason, it should have been disclosed to the Applicants for their comment. Fairness would dictate such a process even if the Immigration Officer claims in her notes that information was not relevant to her decision.
[16] In the interests of fairness the extrinsic information appears to have been drawn from a source the Applicants themselves had been led to believe no longer existed. Indeed, they had been told by an immigration officer that the paper file regarding their previous case had been destroyed. Had they known that a paper file actually existed, they would have reviewed its contents and made submissions to clarify and correct the Immigration Officer's erroneous interpretation that the information contradicted the Applicants' assertions. Not given that opportunity, this led to a decision that was not only unfair but was based on erroneous information resulting in a mistake of fact.
[17] Finally, it is submitted that the Immigration Officer erred in failing to provide an oral hearing, or any other meaningful participation by the Applicants.
[18] One of the most important issues to be decided in this case is the credibility of the Applicants' claim; and their allegation of a previous 1992 H & C Application had been granted approval-in-principle. The Immigration Officer was faced with conflicting versions and credibility is an issue that the decision-maker was called upon to determine. Had a personal interview been conducted it would have allowed the Immigration Officer to determine for herself the credibility of the Applicants' version of the events, otherwise it contravenes the duty of fairness.
[19] The Respondent submits with respect to extrinsic evidence that while the previous application on humanitarian and compassionate grounds is referred to in the notes, there is no indication that she relied on the information, nor was the previous application a factor in her decision. That the officer was unable to find corroboration of the Applicants' favourable admission did not impugn the Applicants' credibility. Indeed, the reasons do not indicate that the officer had any credibility concerns.
[20] Finally, with respect to the duty to grant an interview to the Applicants, the Respondent argues that there is no statutory requirement to hold an interview in applications on humanitarian and compassionate grounds.
[21] Concerns about the best interests of the child were argued at length by both parties but I will refrain from commenting at this time since I am prepared to decide the issue on other grounds.
[22] The Applicants are on much firmer ground with respect to their main contention, the issue of extrinsic evidence. Indeed, one of the grounds relied upon was that their claim had previously been granted approval-in-principle to remain in Canada in 1992. On this point, the Immigration Officer's notes state the following:
Previously the family lived in Canada from 1988 to 27Feb1992 and, counsel claims, they were granted approval-in-principle on H & C grounds but have no documentary evidence to prove this. Counsel goes on to state that the couple were part of the Refugee Backlog in'89. They submitted to H & C applications, one in approximately '90, which was refused. and one in about '92 just prior to their removal - Counsel further states that according to existing procedures at that time, they would have been to a "pre-removal"H & C review as members of the Backlog and this 1992 application should have been considered as such.
Counsel states they had their applications sent directly to Ottawa but did not receive a response prior to removal on 27Feb1992 and about a month after their removal they state that the mother-in-law in Canada received a letter stating that their application had been approved, but she no longer has this letter. She did not advise the subjects about this letter for at least a year and when they approached the Canadian embassy in Argentina, they state they weer told that nothing could be done without the letter, so the family finally decided to travel to Canada and try to resolve the matter here.
(I have traced the Backlog file to a unit at NHQ & have received a faxed copy of the decisions on the pre-removal H & C, both dated 10Oct1990. The decision refers to NHQ file HQ7-08273 and CIC file 3740-88-10651 & 10652 regarding one Daniel Alejandro Ardiles & Mirta Marlene Melgarejo, respectively. The decision is signed by an officer of the Refugee Backlog review unit who was responsible for reviewing the pre-removal H & Cs under the Backlog Guidelines, and states that the Minister has determined that there are not sufficient humanitarian and compassionate grounds to process the above-named for landing in Canada. Please proceed with removal.)
[23] From my reading of the Immigration Officer's notes, it is not clear what consideration she gave to the allegation of the Applicants concerning the previous approval-in-principle. Her notes do not contradict this statement since she refers only to the decision rendered in 1990 and that the Applicants had referred to two H & C reviews, one in 1990 and the other in 1992.
[24] However, it is not clear that the information the Immigration Officer found in the backlog file only related to the 1990 H & C application and may have erroneously believed that it contradicted the Applicants' assertions with respect to their 1992 submissions, thus creating a doubt as to credibility.
[25] Furthermore, from my reading of the Immigration Officer's notes, it is not entirely clear what weight this information was given. The following excerpt appears to suggest that the new information had no bearing on the outcome of the 2001 H & C application:
As the issue of whether approval-in-principle was granted previously is more an issue of the couple's immigration history, rather than current H & C considerations, I do not consider this to be extrinsic information which requires a response from the client, therefore I will proceed with the assessment of the H & C considerations.
[26] On the other hand, what is clear is that the Immigration Officer found the information significant enough to conduct her own investigation. Indeed, in an e-mail correspondence with NHQ dated November 5, 2001, she wrote the following:
If the client can't prove he was granted AIP & I can't find a record of the file or any approval or OIC, I will just assess the case as any other "new "H & C request. However, I have to at least investigate to see if what the clients are saying is true & whether or not the fact that they have now been in Argentina since '92 negates any AIP or OIC waiver which may have been granted.
[27] If the 1992 H & C Application and that result was not a relevant in her assessment, as she claims, then one is left with two questions: Why did she still embark on an independent and lengthy investigation? Clearly, e-mail correspondence, the various voice mails and faxes as well as the officer's notes all demonstrate that she found it sufficiently relevant as to credibility to warrant extensive research.
[28] The Respondent submits that while the previous application on humanitarian and compassionate grounds and its result are mentioned in the Immigration Officer's notes, there is no indication that she relied on the information, nor that the previous application was a factor in her decision.
[29] The leading authority on the issue of use of extrinsic evidence is Shah v. Canada (Minister of Employment and Immigration) (1994), 170 N.R. 238 (F.C.A.). In that case, Hugessen J.A. (as he then was) stated at para. 2 that if an immigration officer relies on "extrinsic evidence, not brought forward by the applicant", he must give the applicant the chance to respond to this evidence. In the subsequent decision of Dasent v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 720 (F.C.T.D.)[1], Rothstein J. (as he then was) explained what was meant by "extrinsic evidence, not brought forward by the applicant". At para. 22 of his reasons, he stated:
In the case at bar, having regard to the words "not brought forward by the applicant" used by Hugessen J.A. to qualify the term "extrinsic evidence," and his reference to Muliadi, I interpret the term "extrinsic evidence not brought forward by the applicant" as evidence of which the applicant is unaware because it comes from an outside source. This would be evidence of which the applicant has no knowledge and on which the immigration officer intends to rely in making a decision affecting the applicant. While this would include information obtained from an outside party as in Muliadi, I fail to see why it would not also include evidence from a spouse obtained separately from the applicant, or other information in the immigration file that did not come from the applicant, of which the applicant could not reasonably be expected to have knowledge.
[30] He went on the state at para. 23 that the relevant point is "whether the applicant had knowledge of the information so that he or she had the opportunity to correct prejudicial misunderstandings or misstatements". In the case at bar, the Respondent concedes that the information in the Applicants backlog file was "extrinsic" in the sense that it emanated from sources other than the Applicants themselves. Further, neither the Applicants nor their counsel were ever notified that the backlog file had been located until they read the Immigration Officer's notes, which were only forwarded after this application for leave was filed in January 2002 and that following a specific request which had been submitted by counsel. At all times, they had been led to believe that the paper file no longer existed, which put them in the difficult position of having to prove by other means the truth of their claim.
[31] On the facts before me, I must conclude that the information contained in the Applicants backlog file pertaining to the previous H & C applications is "extrinsic evidence, not brought forward by the applicant" for the purposes of this application and the Applicants never had the opportunity to deal with the evidence.
[32] Having so determined, the more difficult question is whether the Immigration Officer subsequently relied on this information.
[33] As I stated, there is nothing in the officer's notes nor in the Record pertaining specifically to the result of the 1992 H & C Application. More importantly however, there is no clear evidence that the officer did not draw a negative credibility assessment Indeed, the evidence clearly shows that the Immigration Officer had some serious concerns about the credibility of the Applicant's claim.
[34] In my view, if after gathering all the information available concerning the Applicants' claim and the officer was unable to clearly establish the outcome of the 1992 H & C Application, then the least she could have done was to raise the matter with the Applicants and request their response. Given this opportunity, I have no doubt that they would have been able to clarify the issue and correct any discrepancies that the officer noted.
[35] The fact remains however that the mere mention by the Immigration Officer in her notes that "I do not consider this to be extrinsic information which requires a response from the client" is not sufficient. This is particularly so considering that she went out of her way to gather the information which, in her own words, was clearly relevant to establish whether the Applicants were telling the truth with respect to their claim. In Redman v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 120 (F.C.T.D.), Rothstein J. (as he then was) stated the following at paras. 4-5:
When an anonymous letter prejudicial to an applicant is received by an Immigration Officer, such letter must be disclosed. The alternative - non-disclosure discovery by an applicant after a negative decision has been made and then an assertion by the Immigration Officer that the letter was not relied upon - leads to a perception of unfairness.
Of course, apparent irregularities discovered after a negative decision is made are often explained or justified. In some circumstances, however, such after the fact explanation or justification will not satisfactorily meet the requirements of fairness. In the immigration context, anonymous prejudicial letters are particularly nasty and offensive. In most cases, the contents of such communications will rightly be disregarded. However, fairness requires that when such potentially damaging information is received it must be disclosed so that an applicant may be satisfied, before a decision is made, that it will be disregarded, or that he or she has had an opportunity to respond to it.
See also Haouari v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 925 (QL) (F.C.T.D.) at paras. 10-11.
[36] This is clearly a borderline case. Even though the Immigration Officer stated that she did not consider the information to be "extrinsic" and that, in any event, she did not rely on it, the non-disclosure of this relevant information leads to a perception of unfairness and breach of duty. Further, I cannot conclude that the breach of natural justice was so minor in extent and could not have appreciably affected the final decision.
[37] I need not deal with the other matters raised by the Applicants as my finding above disposes of this application.
[38] I hereby allow this application for judicial review and refer the matter back for redetermination to a different immigration officer.
JUDGE
OTTAWA, Ontario
December 23, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3-02
STYLE OF CAUSE: DANIEL ARDILES, ET AL v. MCI
PLACE OF HEARING: Toronto
DATE OF HEARING: December 10, 2002
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Rouleau
DATED: December 23, 2002
APPEARANCES:
Ms. Patricia Wells
For the Applicants
Ms. Rhonda Marquis
For the Respondent
SOLICITORS OF RECORD:
Ms. Patricia Wells
Barrister and Solicitor
344 Dupont Street
Suite 306
Toronto, Ontario
M5R 1W9 For the Plaintiffs
Ms. Rhonda Marquis
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
[1] Rothstein J.'s decision was reversed on appeal on the grounds that the evidence at issue was not "extrinsic evidence" within the meaning of Shah. See (1996), 107 F.T.R. 80 (F.C.A.). Leave to appeal was denied by the Supreme Court of Canada on October 3, 1996.
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