Date: 20101102
Docket: IMM-2149-10
Citation: 2010 FC 1075
Toronto, Ontario, November 2, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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TAPAN KUMAR PAUL
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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]
In
my view, the respondent not only breached the rules of natural justice and
acted unfairly towards Tapan Kumar Paul, but did so in an egregious manner.
[2]
Mr.
Paul is a citizen of Bangladesh. He submitted an
application for permanent residence in Canada as a skilled worker to the High Commission of
Canada in Singapore in July 2006 – four and
one-half years ago. In his application he claimed 5 points for having a
relative in Canada because his sister was a Canadian citizen residing in Canada. His application
stated that her name was Tapashi Das and that she was married. Given that she
did not have the applicant’s family name, it was reasonable to believe that she
took her husband’s name. In any event, anyone reviewing the application would
immediately see that Ms. Das and the applicant did not share a last name.
[3]
On
November 27, 2009, the applicant received a letter from the High Commission in Singapore requesting additional
supporting documentation. The letter provided a list of documents and read:
“YOU SHOULD SUBMIT ONLY THOSE ITEMS MARKED WITH AN “ü (emphasis added).”
[4]
The
letter is a form letter. One of the documents listed in it is “Notarized copy
of Marriage Certificate(s) for ______”; there was no checkmark next to this
item. He was asked by way of a check mark to provide “Proof of your
relationship to your relative in Canada (Birth Certificates only are accepted.
Statutory declarations are not acceptable) (emphasis added).
[5]
Mr.
Paul dutifully complied and provided his sister’s birth certificate, which of
course was in her birth name, Tapashi Rani Paul. It indicated the same date of
birth as that indicated on Mr. Paul’s application and on the Certificate of
Canadian Citizenship of Tapashi Das that he had submitted with it. Mr. Paul
did not provide his sister’s marriage certificate as the respondent had
directed him to provide only the checked documents.
[6]
On
February 11, 2010, the applicant received notice of a negative decision on his
application. He had been awarded 66 points, one point short of the required 67
points. He had received 0 points for having a family member in Canada. The Officer wrote
that:
[Y]ou have not demonstrated that you have
a qualifying relative residing in Canada. You did not provide a marriage
certificate which would demonstrate the relationship between you and Mrs. Das.
Consequently, 0 points were awarded for adaptability.
[7]
The
CAIPS notes which form a part of the Certified Tribunal Record may explain why
the Officer awarded the applicant zero points for failing to provide his
sister’s marriage certificate when it has been specifically indicated to the
applicant that only her birth certificate was to be provided.
[8]
The
Officer who reviewed the application on November 26, 2009, noted that if the
relative in Canada was established to be
his sister, then he would be awarded 5 points for adaptability and would thus
have sufficient points to be awarded the visa. That Officer made the following
entry: “MARRIAGE CERTIFICATE OF SISTER AND PROOF OF LIVING IN CDA TO BE
REQUESTED.” Although the file folder provided as a part of the certified
tribunal record indicates that on November 27, 2009, a document request was
made, the letter that was sent, dated November 27, 2009, does not form part of
the Certified Tribunal Record. It is this letter that specifically did not ask
the applicant to send a copy of his sister’s marriage certificate; in fact, it
indicated to any reasonable person reading it that he should not send the
marriage certificate to the respondent.
[9]
There
is no question that officers would be well advised to review the actual letters
sent to applicants in such situations rather than simply relying on the CAIPS
notes, as appears to have been the case here. Mistakes do happen and
instructions given are not always carried out precisely. Because of that
failure the Officer whose decision is under review penalized the applicant. He
stated in the CAIPS notes: “APPLICANT HAS NOT PROVIDED PROOF OF RELATIONSHIP
WITH TAPASHI DAS. HE HAS PROVIDED BIRTH CERTIFICATE OF TAPASHI RANI PAUL BUT
NO MARRIAGE CERTIFICATE TO INDICATE THAT TAPASHI DAL (sic) IS SAME
PERSON.”
[10]
One
might excuse the Officer for coming to this decision as the letter sent to the
applicant that failed to ask for the marriage certificate was apparently not
before him or her. However, how does one excuse, or even comprehend, how the
respondent continued to defend that decision after receiving a copy of the
letter with the record filed with the application for leave and judicial
review?
[11]
The
letter makes it clear and obvious that the respondent led the applicant to
believe that he need not, and in fact should not, send the marriage certificate
to the reviewing Officer. The respondent’s actions are akin to those of Lucy,
who, contrary to her assurances, pulls the football away from Charlie Brown just
as he is about to kick it. Lucy’s action is mean and unfair; the respondent’s
action breaches the duty of procedural fairness.
[12]
At
the hearing, after indicating my view that the respondent was clearly in the
wrong, I asked the parties to address the issue of costs. The applicant asked
for costs of $1,500.00 while the respondent submitted that there were no
exceptional circumstances justifying an award of costs.
[13]
Section 22 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22 provides:
No costs shall be awarded to or payable
by any party in respect of an application for leave, an application for
judicial review or an appeal under these Rules unless the Court, for special
reasons, so orders.
[14]
I am
of the view that there are special reasons why costs should be awarded in this
case. The Immigration Officer who made the decision made a clear error, and in
so doing committed an egregious breach of procedural fairness. The respondent
decided to oppose the applicant’s application for leave and for judicial
review, causing the applicant to incur significant legal expenses even though
he is clearly in the right. Furthermore, the respondent’s submissions did not
address the serious issue raised by the applicant and on which he was
successful. Instead, the respondent made boilerplate submissions about the
duty to give reasons and patent unreasonableness which have no relevance to the
single and clear issue raised by the applicant.
[15]
In Dhoot
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1295, Justice Kelen awarded costs
where a letter requesting an interview was not sent to an applicant. At para.
19 he wrote that:
It is wrong for the respondent, in a case
such as this, to oppose the applicant's Court case. For this reason there are
special circumstances in this case to award legal costs to the applicant. The
applicant presented clear evidence that he did not receive the letter
scheduling the interview. The respondent should have recognized that this
letter was not properly sent or received, so that this Court hearing should not
have been necessary. Accordingly, the legal costs associated with this
application before the Court are awarded to the applicant.
[16]
In
this case, the conduct of the respondent throughout has been unfair, improper,
and has resulted in undue prolongation of proceedings and a delay in the
applicant’s application being determined in a timely manner. These are
sufficient special reasons to justify an award of costs. Further, it is
appropriate to order the respondent to give prompt attention to the applicant’s
application for a permanent resident visa as a skilled worker.
[17]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT IS that:
1. This
application is allowed and the decision of the Immigration Officer dated
February 11, 2010, denying the applicant’s application for a permanent resident
visa as a skilled worker is set aside.
2. The
applicant’s application for a permanent resident visa as a skilled worker is
remitted to a different Immigration Officer for an assessment in keeping with
these reasons and with the following directions:
(i) the
assessment and decision of the Immigration Officer shall be made within three
months of the date of this Judgment, failing which, in light of the initial
scoring of the application, the respondent shall grant the applicant a
permanent resident visa as a skilled worker; and
(ii) if
the Immigration Officer is of the view that the applicant’s sister’s marriage
certificate or any other document is required to be provided, the applicant
shall be informed of the specific documents he is to provide and be given a
reasonable period of time to provide them.
3. No
question is certified.
4. There
being special reasons in this case, as provided in section 22 of the Federal
Courts Immigration and Refugee Protection Rules, the applicant is awarded
his costs, fixed at $1,500.00 inclusive of disbursements and taxes.
“Russel W. Zinn”
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