Date: 20061123
Docket: IMM-7493-05
Citation: 2006
FC 1421
Toronto, Ontario, November 23, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
AFSANEH AMIN AKBARI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms. Akbari’s application for an authorization to
return to Canada (ARC) under subsection 52(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) was refused. She seeks judicial
review of the refusal alleging that the officer failed to consider the totality
of the evidence upon which the application was based. Despite the articulate
submissions of counsel for the respondent, I conclude that the application for
judicial review should be allowed.
Background
[2]
The facts can be succinctly stated. Ms. Akbari
has a reasonably lengthy immigration history. She is an Iranian citizen and a
failed refugee claimant. She has been married to a Canadian citizen since July
14, 2002. The bona fides of the marriage is not in issue. An
application under the spousal sponsorship provisions of the IRPA has been
submitted. A previous application was refused. There is some indication of a possible
problem with the current spousal sponsorship application. At present, it is pending.
[3]
Ms. Akbari had earlier applied for a green
card in the United States although
it is not clear from the record precisely when the application was made. When
her green card was approved in August of 2004, she travelled to the United States. In so doing, she was
deemed deported (as a failed refugee claimant) and therefore required
authorization under subsection 52(1) of the IRPA and subsection 226(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations)
to return to Canada. Subsection 52(1) of the IRPA provides that if a removal
order has been enforced, a foreign national is precluded from returning to Canada unless authorized by an officer.
Regulation 226(1) states, for the purposes of subsection 52(1) of the IRPA,
that a deportation order obliges the foreign national to obtain a written
authorization in order to return to Canada at any time after the deportation order was enforced.
[4]
Ms. Akbari claims not to have been aware, at the
time of her departure, that by leaving voluntarily, she was effecting her
deportation and would thus require authorization to return. When she returned
to Canada she was intercepted
at the airport. She completed a pre-removal risk assessment (PRRA)
application, which was ultimately determined to be negative. Her passport was
seized and subsequently lost by the Canada Border Services Agency (CBSA)
officials. Ms. Akbari was removed from Canada. She made another attempt to return in April, 2005, but was denied
admission.
[5]
As noted earlier, she has twice applied for
authorization to return to Canada. She has been refused on each occasion. Her husband cannot enter
the United States because he is
married to a green card holder and requires a waiver. He has applied for, but
as yet has not received, the waiver. Ms. Akbari has not been able to obtain a
new passport and therefore she and her husband cannot meet in a third country.
Issue
[6]
Ms. Akbari asserts that it was a breach of the
duty of procedural fairness for the officer to refuse her application without
considering the totality of the circumstances.
Analysis
[7]
It is common ground that the impugned decision
is a discretionary administrative decision. The duty of procedural fairness
applies to discretionary administrative decisions and its content varies
according to context: Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817(Baker). The concept of fairness
is situational, not abstract or absolute: Chiau v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 297 (C.A.) (Chiau). In
determining the content of the duty, Baker teaches that a number of
factors are to be taken into account. The factors include: the importance of
the decision to the individual; the nature of the decision and the decision-making
process; the public interest; and the factual context.
[8]
Since Ms. Akbari is a foreign national, the
decision in this matter did not deprive her of any legal right. Nonetheless,
it has a significant impact on her because it deprives her of the ability to
reside with, or visit, her husband. It is noteworthy that if she were
physically in Canada, she would
be entitled to remain (notwithstanding her lack of status) pending the outcome
of the spousal sponsorship application. In relation to the administrative
discretionary nature of the decision and the decision-making process, the
decision is factually driven and is largely based on open-ended and subjective
discretion.
[9]
The public interest factor requires that
attention be directed to our immigration laws, to ensuring that non-citizens
adhere to them and that officials enforce them. As noted in Chiau, a
decision adversely affecting an individual may engage a lower content of
procedural fairness where prejudice to national security or international
relations is engaged. There do not appear to be issues of that nature or
issues of criminality in this matter.
[10]
The factors must be balanced, not in the
abstract, but in the factual context of the particular case. Thus, the level
of procedural fairness required in one case may not be the same as that
required in another. It is not insignificant that some hardship has been
imposed in this matter as a result of the loss of Ms. Akbari’s passport.
[11]
In balancing the factors in the situational
context of this matter, I consider the content of procedural fairness to be
near the low end of the spectrum. I do not agree with Ms. Akbari’s suggestion
that an interview was required. Nor is there a requirement that formal reasons
be provided. As in Baker, I conclude that the notes of the immigration
officer may be taken as the reasons for the decision. That said, I also agree
with the respondent that an ARC should not be construed as a mini humanitarian
and compassionate application. However, regard must be had to the various
factors that I have discussed. This requirement necessitates that
consideration be given to the totality of the factual circumstances that are
presented to the immigration officer.
[12]
Here, the notes of the immigration officer
reveal a focus on Ms. Akbari’s immigration history. The officer noted that the
sponsorship application, thus far, has not been successful and that there may be
problems with it (the information in the FOSS notes is ambivalent in this
regard). The officer also indicated apprehension with respect to Ms. Akbari
remaining beyond her authorization, if given an ARC. Regrettably, there is no
indication that consideration was given to any of the factual circumstances
presented by, and of concern to, Ms. Akbari. More specifically, she submitted,
among other things, that she had left Canada voluntarily, that she and her husband could not reunite in North
America or elsewhere, and that she was not inadmissible for reasons of
criminality.
[13]
If the immigration officer considered Ms.
Akbari’s specific submissions, his notes do not reflect that consideration.
Absent some indication in the notes that the officer at least turned his mind
to Ms. Akbari’s circumstances, I have little choice but to assume that he did
not.
[14]
In my view, it follows that the failure of the
officer to consider the totality of the evidence resulted in a denial of
procedural fairness to Ms. Akbari. I emphasize that my conclusion is factually
driven and it applies to the unique circumstances of this matter. Further, my
determination is not to be construed as constituting an opinion or position
regarding the merits of Ms. Akbari’s ARC application.
[15]
For the foregoing reasons, the application for
judicial review will be allowed. Counsel, recognizing that this matter was
factually-driven, declined to suggest a question for certification. I agree
that no question for certification arises.
ORDER
THIS COURT ORDERS THAT the application for
judicial review is allowed and the matter is remitted to a different
immigration officer for determination.
“Carolyn
Layden-Stevenson”
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