Date: 20090127
Docket: IMM-2492-08
Citation: 2009 FC 79
Ottawa, Ontario, January 27,
2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CHI FAT ALFRED LAW
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of an Immigration Officer,
dated April 24, 2008, denying the applicant’s application for permanent
resident status from within Canada on humanitarian and compassionate (H&C)
grounds.
FACTS
[2]
The
applicant is a citizen of China. He has two children, aged 15 and 13
respectively. The applicant originally entered Canada in 1997 as a
permanent resident. He returned to Hong Kong in 1998 and lived apart from his
family until he returned to Canada in 2006. He states that he returned for
business reasons and maintained constant communication with his family,
particularly his children, although he and his wife eventually separated.
[3]
The
applicant’s wife, and children’s mother, died in October 2007. At the time of
her death, she was separated from the applicant and had custody of their
children, although there was ongoing litigation between her and the applicant
in relation to custody and access. Her will appointed her mother to have
custody of their children in the event of her death. The children currently
reside with their maternal grandparents.
[4]
The
applicant filed an H&C application on February 12, 2008. He states that at
the time, he was involved in the litigation relating to his children’s
custody. He indicated that further detailed submissions and documentation
would be forthcoming and requested that Citizenship and Immigration Canada
(CIC) not render a decision until these were filed.
[5]
CIC
rendered its decision on April 24, 2008, before receiving any further
submissions from the applicant. The applicant was not notified before the
decision was made.
Decision under review
[6]
The
Immigration Officer states at page 12 of the Applicant’s Record that the
applicant’s application was not complete:
The applicants’ humanitarian and
compassionate grounds are not specified in this application or in the letter
from counsel. The application guide provides instruction and warning related
to stating circumstances that are to be considered and the requirement to
provide supporting information.
Although the subject sated [sic] in
February that he intended to send additional submissions, none have been
received in the ensuing months.
In making my decision in this case I
reviewed the submissions made by the subject and his counsel the last dated
received on 15 February 2008. I also reviewed information available on the
Foss [sic] system.
[7]
The
Officer then considered the best interests of the children. She concluded that
they would not be adversely affected by the applicant’s removal:
[The applicant] returned to Hong Kong in
1998 and lived apart from his family until he returned to Canada in 2005…At the time of his
return his now deceased spouse told Immigration officials that she did not want
him to come into her home. She was providing for the children. Since then the
subject’s spouse is deceased and left a will that awarded full custody of the
two children to her parents. They have and still are residing with their
grandparents. I have been given no reason to believe that the children’s best
interests are not being attended to and that a further separation from their
natural father would likely present an excessive hardship. It is not
established in these submissions that there is a strong bond with his
children. There is evidence that he would like to be in their lives.
[8]
The
Officer concluded that the best interests of the children were not negatively
affected and, as the applicant had not at that time made any submissions,
rejected the application.
ISSUES
[9]
The
applicant raises two issues in this application:
1.
whether
the Immigration Officer breached the principles of natural justice by failing
to provide the applicant with the opportunity to present further submissions
and evidence; and
2.
whether
the Immigration Officer erred in failing to properly consider the best
interests of the children involved.
STANDARD
OF REVIEW
[10]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of [deference] to be accorded
with regard to a particular category of question.”
[11]
In Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2
S.C.R. 817, the Supreme Court of Canada established that reasonableness is the
appropriate standard of review for H&C application decisions. The Court
stated at paragraph 62:
¶ 62 … I conclude that considerable
deference should be accorded to immigration officers exercising the powers
conferred by the legislation, given the fact-specific nature of the inquiry,
its role within the statutory scheme as an exception, the fact that the
decision-maker is the Minister, and the considerable discretion evidenced by
the statutory language. Yet the absence of a privative clause, the explicit
contemplation of judicial review by the Federal Court – Trial Division and the
Federal Court of Appeal in certain circumstances, and the individual rather
than polycentric nature of the decision, also suggest that the standard should
not be as deferential as “patent unreasonableness”. I conclude, weighing all
these factors, that the appropriate standard of review is reasonableness simpliciter.
[Emphasis added]
[12]
In
reviewing the Board’s decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” (Dunsmuir at paragraph 47). On a pure issue of natural
justice, the correctness standard applies.
ANALYSIS
Issue No. 1:
Did the Immigration Officer breach natural justice principles by rendering a
decision before the applicant had an opportunity to make further submissions?
[13]
In
the cover letter accompanying his H&C application, the applicant’s counsel
informed the CIC that he would be providing submissions and further evidence.
Applicant’s counsel stated:
Please note that we will be sending to
you, detailed submissions and further documentation addressing the issues
relating to this application. We therefore request that you do not make a
final decision in this matter until you have received and reviewed the said
submissions and documentation.
[14]
The
immigration officer noted this request in her decision but stated that no
further submissions had been forthcoming in the two months that had passed
since the applicant filed the H&C application. The applicant submits that
CIC breached his right to natural justice by failing to notify him of its
intent to render a decision, or giving him an opportunity to file the additional
materials.
[15]
The
respondent submits that while an Immigration Officer is obligated to consider
all the evidence submitted by the applicant, she does not have any duty to
elicit additional information. The onus is on the applicant to provide all
relevant evidence to make his case, and the Officer has only a duty to make a
reasonable decision on the basis of that evidence.
[16]
The
applicant relies on Pramauntanyath v. Canada (MCI), 2004 FC 174, and Skripnikov
v. Canada (MCI), 2007 FC 369, wherein the Court ruled that a decision made
on the basis of an incomplete record constitutes a denial of natural justice.
In Pramauntanyath, however, the officer did not consider evidence that
had been timely submitted by the applicant, while in Skripnikov, there
was a question as to when the evidence had been submitted. In this case, of
course, there is no allegation that any evidence that was submitted at the time
of the decision was not considered by the Officer.
[17]
The
applicant submits that given the “unusual” speed with which the application was
processed and the request of the applicant on the record, the officer had at
the least a duty to notify the applicant that a decision would be rendered soon
so that the applicant could provide the materials he had indicated would be
forthcoming. The applicant submits that the CIC has a general practice of
notifying H&C applicants before a decision is made, and giving them an
opportunity to update their applications and that, given the applicant’s
particular request in this case, he had a legitimate expectation that he would
have this chance before a decision was made.
[18]
In
Melchor v. Canada (MCI), 2004 FC 1327, 39 Imm L.R. (3d) 79, the
applicants argued that they had relied on the practice of immigration officers
in Vancouver of always
requesting an updated file before making a decision. In that case, Justice
Gauthier found at paragraphs 8-9 that affidavits from two immigration lawyers
were insufficient to establish that a request was sent in every file, and found
that in any case, there was no evidence that the applicants or their counsel
were aware of or relied on such a practice. She therefore concluded at
paragraph 12 that there was no legitimate expectation that such a request would
be made before a decision was rendered. The respondents also cite Zambrano
v. MCI, 2008 FC 481, 167 A.C.W.S. (3d) 165, in support of their argument
that immigration officers are not required to request information before making
a final decision. In Zambrano, Madam Justice Eleanor Dawson held, and I
paraphrase, at paragraphs 35 to 39 that:
a.
the
applicant bears the burden of supplying all of the documentation necessary to
support their claim and an officer is not required to request updated
information;
b.
the
applicant does not have any legitimate expectation that he will be able to
present updated information before the decision is made, and there is no breach
of procedural fairness if he is are not afforded that opportunity; and
c.
the immigration
policy manual for H&C applications instructs officers that they are not
required to elicit information on H&C factors and the onus is on the
applicant to put forward the factors that they feel exist in their case. There is
no basis for an applicant suggesting that he or she will be contacted and asked
to provide further information.
Issue No. 2: Did the
officer fail to properly consider the best interests of the children?
[19]
The
applicant submits that the Immigration Officer failed to consider the best
interests of the children. The Court disagrees. The Immigration Officer
reviewed the situation with the two children and found that the children are
residing with their grandparents and there is no reason to believe that their
best interests are not being attended to. There is no recent evidence that the
children have any bond, or wish to live, with their father. The one sentence notes
from the two children are out of date, and do not warrant substantive weight
that they want to live with their father who left them 10 years ago.
[20]
For
these reasons, this application must be dismissed. The Court advised counsel
that the applicant can always file a new H&C application immediately and
provide the proper evidence and submissions. There is a possibility (depending
on the discretion of the respondent) that the applicant may not be removed
pending his Ontario Court proceeding for custody of his children if the custody
matter proceeds quickly.
[21]
Both
parties advised the Court that they do not consider that this case raises a
serious question which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This application for judicial review is dismissed.
“Michael A. Kelen”
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