Date:
20121206
Docket:
IMM-9219-11
Citation:
2012 FC 1424
Ottawa, Ontario,
December 6, 2012
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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MARTA SOUSA DO
NASCIMENTO
YASMIN THATYANNE
NASCIMENTO
BRAGA AND MANUEL
SOUSA CARREIRO
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Applicants
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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]
The
applicants seek judicial review of a decision by an immigration officer denying
their application from within Canada for permanent residence under the spouse
or common law partner class.
[2]
The
principal applicant, Ms. Sousa do Nascimento and her daughter Yasmin, born in
1993, are Brazilian nationals. They have had no contact with Yasmin’s father
since 1996. Ms. Sousa do Nascimento visited Canada on a visa in 2006. On May
25, 2008, leaving an abusive relationship, she and her daughter attempted to
enter Canada at Fort Erie, Ontario. They were prevented from doing so by reason
of the Safe Third Country Agreement and excluded for one year, absent written
authorization to return. The applicants then crossed the border near Montreal in June, 2008 without reporting to a Port of Entry.
[3]
The
principal applicant met her current husband on August 1, 2009 in Toronto. The relationship developed, and they were married on February 6, 2010. The
couple prepared a sponsorship application and presented themselves for an
interview at the Citizenship and Immigration Canada Etobicoke office on October
6, 2011. While the husband is named as an applicant in the style of cause
herein, he is not a person “directly affected” by the decision under review as
contemplated by s. 18.1 of the Federal Courts Act R. S. C., c. F-7 and
is not, therefore, properly a party. References to “the applicants” in this
decision are to the principal applicant and her daughter.
[4]
Ms.
Sousa do Nascimento says she was not aware that she and her daughter had been
excluded for one year and were in breach of the requirement to obtain written
authorization when she illegally crossed into Canada. When the couple
discovered at the interview that the applicants were inadmissible, they claim
that the immigration officer refused to accept and consider their
representations concerning humanitarian and compassionate considerations such
as unity of the family.
[5]
The
Spouse or Common-law partner in Canada Class, as set out in the Inland
Processing Manual (IP 8) exempts applicants from the requirement under s 21(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”)
and ss 72(1)(e)(i) and 124(b) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [Regulations] to have legal status in Canada but
not from the other requirements for the spouse/partner in Canada class. Among
other limitations, the policy specifies that people lacking status who cannot
take advantage of the policy are those who are inadmissible because they failed
to obtain permission to enter Canada after being deported. S. 52(1) of the IRPA
and s 226(1) of the Regulations require a foreign national to obtain
authorization to return to Canada (ARC) after the enforcement of a deportation
order.
[6]
A
negative decision was rendered on November 21, 2011. The officer concluded that
the marital relationship appeared to be bona fide but that the applicant
was inadmissible. The applicants submit that the officer erred in failing to
consider humanitarian and compassionate factors and fettered her discretion.
Those are issues attracting the reasonableness standard of review: Husain v Canada (MCI), 2011
FC 451 at para 13; Millette v Canada (MCI), 2012 FC 542 at para 14; and Jnojules
v. Canada (MCI), 2012 FC 531 at para 16.
[7]
This
application also raises questions of procedural fairness. For such questions,
no deference is due. The Court must determine whether the process followed by
the decision-maker satisfied the level of fairness required in all of the
circumstances: see Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 43.
[8]
At the hearing of this application, I allowed the applicants to
raise an additional issue that was not identified in their notice of
application or memorandum of argument. The applicants contend that they were
unfairly denied prior notice that the admissibility issue would be raised by
the officer at the interview. Had they received such notice, they contend, they
would have sought legal counsel and attended the interview prepared to make
representations on H&C grounds.
[9]
The
officer states in her affidavit and on cross-examination that it is not her
practice to send “fairness letters” with respect to admissibility issues in
advance of a spousal sponsorship interview.
[10]
In
my view, the content of the duty of fairness in the context of a sponsorship
interview does not require prior notice of an admissibility issue such as the
breach of the authorization to return requirement. It is sufficient that the
issue be raised and that the applicants are given an opportunity to respond. I
note that the applicants had the benefit of immigration counsel who accompanied
them to the interview but was not, apparently in the interview room. Further,
they received legal advice immediately after the interview. Notwithstanding
this, no effort was made to provide the officer with submissions in the five to
six weeks prior to the determination of the application. In the circumstances,
the lack of notice could not be said to have deprived the applicants of an
opportunity to make submissions.
[11]
There
is no dispute between the parties that an explicit request for exemption from
the requirement for an authorization to reenter Canada was never made by the
applicants. The question remains whether the officer erred in failing to
consider the submissions received at the interview as an implicit application
for H&C consideration.
[12]
In
this case, the applicants argue that the officer followed the inadmissibility
exclusion in IP 8 even when H&C factors were presented to her. The
officer erred, they contend, in failing to consider the unity of the family and
the best interests of the dependent applicant, to which she was alerted by the
applicant’s spouse at the interview. They assert that the officer misled them
by telling them that she had no power to overcome inadmissibility and prevented
them from making H&C submissions.
[13]
The principal applicant’s affidavit says at para 4(q):
When Manuel heard
that our application would be refused, he explained to the officer how much my
daughter and I mean to him and how big a part of his life we are now and how
much he means to us. It would hurt all of us a lot if our family was torn
apart. He explained also how he has always wanted a child but was never able
to have one. Now, it is so important to Manuel to hear my daughter Yasmin call
him ‘dad’. Manuel told the officer about our lives and love and the security
all three of us had together in Canada and that he would do anything for us to
stay together. He asked if there is any way to prevent our family from being
separated because this would be devastating for all of us. The officer said
that she could not do anything to help us because I did not wait until
exclusion was over before coming back to Canada. It was clear the officer did
not want to hear what we had to say because the officer cited some codes from
the law which we did not know and said that there was nothing she could do. (Emphasis
added)
[14]
In her affidavit and in cross-examination, the officer disputed
the allegation and stated that her notes to file contain a verbatim record of
what was said during the interview. Her notes indicate that the husband stated:
For
the first time I am very happy with my wife and what I have. I now have a
daughter. I never had a child and it is a wonderful feeling. I work hard to
provide for them and I would do anything for them. Is there anything I can do?
[15]
In response to this, the officer suggested that they consult their
lawyer. She understood that she could consider an exemption from the
inadmissibility requirement but did not take the husband’s comments to be a
request for H&C consideration. She acknowledged on cross-examination that
the effect of the inadmissibility decision would be that the principal
applicant and her daughter would have to leave Canada and would be separated
from their husband and step-father. She conceded that these are factors that
she would consider in a humanitarian request.
[16]
The
respondent acknowledges that the Minister (or a delegated person) may, on his
own consideration, review H&C factors but contends that an H&C request
has to be explicit. Absent such a request, the officer is under no obligation
to consider the application of H&C grounds: Kumari v. Canada (Minister of Citizenship and Immigration), 2003 FC 1424 at para 9; Fen v. Canada (Minister of Citizenship and Immigration) 2003 FC 1492 at para 12. Furthermore,
the Court has held that there is no duty on an officer to advise applicants of
their right to make an H&C application: Mustafa v. Canada (Minister of Citizenship and Immigration) 2006 FC 1092 at paras 10, 13-14.
[17]
The
respondent’s position that the officer has no authority to consider an implied
request is inconsistent with the IP Manual, recent Federal Court jurisprudence
and the officer’s own understanding of her duties.
[18]
It
is correct that the Courts have held that officers deciding inland spousal
sponsorship applications can waive inadmissibility resulting from the lack of
an authorization to reenter Canada on humanitarian and compassionate (H&C)
factors if these factors are brought to their attention: Araujo v Canada
(MCI), 2009 FC 515 at paras 18-19. The Minister may waive any applicable
criteria or obligation of the Act on H&C grounds and has an obligation to
consider them if they are raised: Toussaint v Canada (MCI), 2011 FCA 146
at para 11.
[19]
But
section 5.27 of the Inland Processing Manual 5 (IP 5) states, in addition, that
an officer:
a.
, , , may use
discretion to consider, on their own initiative, whether an exemption on
H&C grounds would be appropriate.
Where
the applicant does not directly request an exemption but facts in the
application suggests that they are requesting an exemption for the
inadmissibility, officers should treat the application as if the exemption
has been requested. (Emphasis in the original)
[20]
This
guideline was interpreted by Justice Russell in Brar v Canada (Minister of Citizenship and Immigration) 2011 FC 691. At paragraph 58 he held that it
was immaterial that an applicant had not made a specific request for an
exemption from inadmissibility as s 5.27 creates a duty in an officer to
consider such as request when the facts suggest that a request has been made.
See also Rogers v Canada (Minister of Citizenship and Immigration)
2009 FC 26 at paras 22-38 where the nature of officers’ discretion to grant an
exemption on their own initiative is discussed.
[21]
The
officer interpreted the husband’s entreaty at the close of the interview as a
statement of how he felt. During cross-examination she acknowledged having the
authority to consider an implied request. She stated that when asked “Is there
anything I can do? He didn’t ask me if there was anything I could do for him…”
This was, as the applicants argue, splitting hairs. On the face of the
information before the officer, it was unreasonable not to consider whether the
H&C factors would justify an exemption.
[22]
For
that reason, the decision must be quashed and the matter sent back for
redetermination before a different officer. The parties proposed no questions
of general importance and none will be certified.
JUDGMENT
THIS
COURT’S JUDGMENT is:
1.
the
application is granted and the matter is remitted for redetermination by a
different officer; and
2.
no
questions are certified.
“Richard G. Mosley”
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