Docket: IMM-3112-11
Citation: 2012 FC 470
Ottawa, Ontario, April 20, 2012
PRESENT: The Honourable Mr. Justice
Mandamin
BETWEEN:
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JULES
CUTHBERT
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Applicant
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and
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THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of the May 12,
2010 decision of an Immigration Officer refusing the application of Mr. Jules
Cuthbert and his family to have their application for permanent residence processed
from within Canada because of humanitarian and
compassionate (H&C) grounds.
[2]
I granted this application for judicial review orally at
the hearing and now provide these written reasons for my decision.
Background
[3]
Mr. Cuthbert is in Canada with his wife and five children. The Applicant and his spouse, Naomi
Thomas-Jules, are both citizens of St. Lucia. The two oldest children are also citizens of St.
Lucia while the three youngest children are Canadian citizens.
[4]
The Applicant came to Canada in September 1996. His spouse arrived in Canada in April 1998. He claimed refugee status but his claim was refused in
January 2004 and leave for judicial review was refused in May 2004. He then
sought a Pre-Removal Risk Assessment but it was rejected in March 2006.
[5]
Meanwhile, in 2005, the Applicant had submitted an inland
application for permanent residence on the following H&C grounds:
1. Risk of returning to St.
Lucia,
2. Establishment in Canada, and
3. The best interests of the children including their 12 year
old daughter who has Sickle Cell Disease
Decision
Under Review
[6]
The Officer listed the letters and other information
related to the application received in 2005, more specifically the Applicants’
degree of establishment, the daughter’s medical difficulties and support from
the community. However, the Officer did not address the H&C grounds
advanced by the Applicants. Rather, after listing the factual information, the
Officer merely listed the following attempts made to contact the Applicants for
updated information:
·
Call in notice for updated information sent to both subject
January 2010 and counsel on record March 2010 at last known addresses. Both
came back unclaimed;
·
Tried three phone numbers on record one was not assigned,
one said customer unavailable and the other was a wrong number (date unknown);
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Tried another phone number found on a letter from the
family and on submissions by another counsel but both numbers were not in
service (May 6, 2010);
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Phoned another counsel who had submitted information in
2007 but message was never returned (May 11, 2010);
·
Contacted MP Ruby Dhalla who had sent letter in support of
application but they had no information regarding the Applicant.
[7]
As a result, the Officer claimed to be “unable to make an
informed decision based on stale dated data … [i]t is not known if in fact the
family is still in Canada or
not. Under the circumstances, I cannot not [sic] make a positive decision based
on stale dated submissions.”
[8]
The Officer then stated that the application was refused for
non compliance.
[9]
Shortly afterward the Applicant sent in an updated
submission.
Legislation
[10]
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
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25. (1) The Minister must, on request of a foreign
national in Canada who is inadmissible
or who does not meet the requirements of this Act, and
may, on request of a foreign national outside Canada, examine
the circumstances
concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or
obligations of this Act if the Minister is of the opinion
that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
[Emphasis added]
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25. (1) Le ministre doit, sur demande d’un étranger se
trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas
à la présente
loi, et peut, sur demande d’un étranger se trouvant hors
du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives
à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
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Issues
[11]
The issues raised by the Applicant in this case are:
1. Did the Officer err in not analyzing the application
on its merits and rejecting it on the basis that the application was “stale
dated”?
2. Did the Officer err in not reconsidering the
application on its merits after the updated letter and contact information were
received?
Standard
of Review
[12]
The standard of review for an Immigration Officer’s
decision on H&C grounds is reasonableness: Ramirez v Canada (Minister of Citizenship and
Immigration), 2006 FC 1404 at paragraph 30. A heavy
burden rests on the Applicants to satisfy the Court that the decision under
section 25 requires the intervention of the Court: Mikhno v Canada (Minister of Citizenship and
Immigration), 2010 FC 386 at para 25.
[13]
Errors of law and breaches of procedural fairness are
reviewed on a standard of correctness: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190.
Analysis
[14]
The Applicant argues that the Officer breached the
Applicant’s right to procedural fairness and natural justice by failing to
perform any analysis of the H&C factors and basing the refusal solely on
the fact that the Applicant had not provided updated submissions. This breach
of procedural fairness, he submits, should be reviewed based on correctness.
[15]
The Applicant cites the Citizenship and Immigration “IP5
Immigrant Applicants in Canada on Humanitarian or Compassionate Grounds” Operational manual (“Operational
Manual”) which states that:
If the applicant does
not respond to requests for information, fails to provide an updated address or
fails to appear for the interview for the grant of permanent residence, a
decision can be taken based on information in the file as long as a previous
correspondence has informed the application of how to reply, when to reply and
the consequences of failing to reply.
Note: there is no
provision to “close” an application unless the applicant has formally withdrawn
it. Otherwise, the application must be processed through to a decision, that is,
either approval or refusal.
[16]
The Applicant cites paragraphs 34-35 of this Court’s
decision in Durrant v Canada (Minister of Citizenship and Immigration), 2010
FC 329, a case where an applicant failed to update her H&C submissions.
Despite the fact that the applicant had not updated some of her information,
the officer did analyze the information that was before her unlike in the
present case where this was not done.
[17]
Further, the Applicant argues that section 25 of the Act
does not require that an applicant provide updated information once the
complete application has been submitted. By not analyzing the application on
its merits, this had the effect of “closing” the application which is not
permitted by the Operational Manual.
[18]
The Applicant also states that this case is similar to Adu
v Canada (Minister of Citizenship and Immigration), 2005 FC 565 [Adu]
where Justice Mactavish found that the reasons that were given in response to
the H&C application were “not really reasons at all, essentially consisting
of a review of the facts and the statement of a conclusion, without any
analysis to back it up” and that this was “not sufficient, as it leaves the
applicants in the unenviable position of not knowing why their application was
rejected”: Adu at paragraph 14. The Applicant argues that the response
given to him was not “reasons” but simply a review of the facts and a statement
of conclusion.
[19]
Finally, in her affidavit, the Applicant’s spouse submits
that she did give her immigration consultant an updated address and that the
Applicant received a letter in June 2010 at their new address from CIC refusing
the Applicant’s request for a work permit. This demonstrates that CIC did have
this updated address on file.
[20]
The Respondent states that the proper standard of review is
reasonableness. The purpose of the H&C provision is to allow flexibility
for cases not anticipated in the legislation; it is not an alternative stream
for immigration. The Respondent states that an H&C consideration is a
special, additional and discretionary mechanism. However, a refusal to grant an
exemption does not take any right away from an individual.
[21]
The Respondent argues that the Applicant must satisfy the
Minister that applying from outside of Canada would cause him unusual, undeserved or disproportionate hardship and that
the Applicant did not satisfy the Officer that he met this threshold.
[22]
The Respondent submits that the Officer based the negative
decision on the information that was before the Officer. The Officer was
“unable to make a positive decision with dated information and knowing if the
subjects are in Canada or
not.” The Officer believed that without up to date information it would be
impossible to render a positive decision because the Officer did not know the
Applicant’s then present situation or even if the Applicant still resided in Canada. This decision was reasonable.
[23]
In addition the Respondent argues that, as stated in Townsend
v Canada (Minister of Citizenship and Immigration), 2003 FCT 371, 231 FTR
116 at paragraph 22, the “purpose of reasons is to tell the person concerned
why a particular result was reached” and that the “requirement to provide
reasons is sufficiently flexible to permit various types of written
explanations for the decision to satisfy the requirement.”
[24]
In my view, the determinative issue is whether the Officer
gave proper consideration to making an H&C determination based on the
application materials available. The H&C Officer stated:
Unable to make an
informed decision based on stale dated data. Client nor reps have contacted us
with respect to current whereabouts. All efforts have been to contact client
given the information on file It is not known if in fact the family is still in
Canada or not. Under the circumstances, I cannot not [sic] make a positive
decision based on staled dated submissions.
The case is refused
for non compliance.
[25]
The Officer does not cite any authority for deciding on the
basis of non-compliance. If there are reasons for the decision it is to be
found in the proceeding paragraph.
[26]
Section 25 of IRPA makes it clear that if the application
is made by a foreign national in Canada, the Officer must examine the circumstances of the Applicant and, if not
in Canada, the Officer still has to
give consideration to examining the circumstances of the Applicant.
[27]
The Federal Court of Appeal has said that an H&C
application may still be considered where the applicant has left Canada. In Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311 [Baron], Nadon J.A. stated that the
mere existence of an outstanding H&C application did not constitute a bar
to the execution of a valid removal order: Baron at paragraph 50. In
determining the significance of an outstanding H&C application in the
context of a valid removal order, Nadon J.A., citing with approval the decision
of Pelletier J. (as he then was) in Wang v Canada (Minister of Citizenship
& Immigration), [2001] 3 FC 682 (FCTD), stated at paragraph 51:
After a careful and thorough review of
the relevant statutory provisions and jurisprudence pertaining thereto, Mr.
Justice Pelletier circumscribed the boundaries of an enforcement officer’s
discretion to defer. In reasons which I find myself unable to improve, he made
the following points:
– There are a range of factors that
can validly influence the timing of removal on even the narrowest reading of
section 48, such as those factors related to making effective travel
arrangements and other factors affected by those arrangements, such as
children’s school years and pending births or deaths.
– The Minister is bound by law to
execute a valid removal order and, consequently, any deferral policy should
reflect this imperative of the Act. In considering the duty to comply
with section 48, the availability of an alternate remedy, such as a right to
return, should be given great consideration because it is a remedy other than
failing to comply with a positive statutory obligation. In instances where
applicants are successful in their H&C applications, they can be made whole
by readmission.
– In order to respect the policy of the
Act which imposes a positive obligation on the Minister, while allowing for
some discretion with respect to the timing of a removal, deferral should be
reserved for those applications where failure to defer will expose the
applicant to the risk of death, extreme sanction or inhumane treatment. With
respect to H&C applications, absent special considerations, such
applications will not justify deferral unless based upon a threat to personal
safety.
– Cases where the only harm suffered
by the applicant will be family hardship can be remedied by readmitting the
person to the country following the successful conclusion of the pending
application.
I agree entirely with Mr. Justice
Pelletier’s statement of the law.
[Emphasis added].
[28]
From the last quoted passage it is clear that an H&C
applicant who is removed from Canada before a determination is made on their outstanding H&C application
is eligible for readmission upon a subsequent positive H&C determination.
[29]
During the hearing, the Respondent acknowledged that the
Minister often makes the submission that H&C applications may proceed even
if an applicant is outside of Canada.
[30]
I cannot say, on my reading of the written reasons, that
the Officer gave consideration to examining the circumstances of the Applicant
and his family once the Officer doubted their presence in Canada. I infer from the Officer’s questioning whether the
Applicant family was in Canada, that this factor was part, if not all, of the Officer’s reason for not
considering the H&C application.
[31]
In the Applicant’s original submission, the Applicant
raised a substantive basis for considering the best interests of the child,
namely the child’s affliction with Sickle Cell Disease. Nothing in the
materials before the Officer suggests that disease is a temporary condition. In
my view, there remained good reason for the Officer to give consideration to
this H&C factor.
[32]
It is an error for the Officer to fail to give
consideration to assessing the H&C application merely because the Applicant
may be out of the country.
[33]
Neither Applicant nor Respondent has proposed a question of
general importance for certification.
Conclusion
[34]
The application for judicial review is granted.
[35]
I do not certify any question of general importance for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that
1. The application for judicial review is granted.
2.
I do not certify any question of general importance for
certification.
“Leonard S. Mandamin”
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