Date: 20090318
Docket: IMM-3074-08
Citation: 2009 FC 276
Ottawa, Ontario, this 18th day of March
2009
Present: The Honourable Orville
Frenette
BETWEEN:
MARWAN PHARAON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”) of the decision
of an immigration officer (the “officer”) at the High Commission of Canada in London,
England, dated May 7, 2008, rejecting the applicant’s application for a
permanent resident visa as a member of the Quebec economic skilled worker
class.
The facts
[2]
The
applicant is a 65-year-old citizen of Saudi Arabia who resides in Riyadh with his
wife and two sons.
[3]
In
1971, he graduated from Riyadh University, obtaining a
bachelor’s degree in engineering and political science. For more than 30 years
he co-owned and managed a company, Saif International Corporation, in Saudi Arabia.
[4]
In
2002, the applicant applied for selection as a member of the Quebec
Entrepreneur Class. He was accepted and was given a Quebec selection
certificate (“QSC”).
[5]
In
August 2005, he submitted an application for permanent residence to the High
Commission of Canada in London, England, for himself, his wife and
younger son. His elder son, Rafiq, had been issued his own separate QSC. The
applicant was then represented by an immigration consultant whose address in Pierrefonds, Quebec, was
supplied as the applicant’s mailing address.
[6]
Between
2005 and May 14, 2008 a long series of exchanges took place between the
applicant or his representative and the Canadian immigration authorities.
[7]
On
February 28, 2007, the applicant wrote to the Canadian High Commission advising
it that he had a new representative and asking to change his mailing address as
indicated in the letter.
[8]
On
April 26, May 17, June 18, July 25, August 10, and September 8, 2007, the
applicant or his representative sent letters to the Canadian High Commission in
London but got no
reply.
[9]
On
October 10, 2007, the applicant noticed that his mailing address was
incorrectly listed on the Client Application Status website. He wrote to the
Canadian High Commission about the error and asked that any future correspondence
be mailed to the address of his representative in Pierrefonds, Quebec.
[10]
On
October 24, 2007, the applicant’s representative received medical reports to be
completed by the applicant and his family, and instructions to undergo medical
examinations and to pay the Right of Permanent Residence Fee (“RPRF”) for his
sons.
[11]
On
February 21, 2008, the Canadian High Commission responded to the applicant’s e-mail
of February 14 inquiring about the status of the file. The response requested a
number of outstanding items and documents required to complete the file.
[12]
On
March 11, 2008, the applicant’s representative received a letter, dated March
3, requesting the same items listed in the letter of October 24, 2007 and
giving the applicant a 60-day deadline to submit this material. A letter was
enclosed enabling initiation of the process to obtain a police certificate from
the Saudi Arabian police.
[13]
On
March 12, 2008, the applicant’s representative e-mailed the Canadian High
Commission advising that 60 days was insufficient to obtain the police
certificate and requesting an extension of time.
[14]
On
April 22, 2008, the extension of time was refused and the applicant was
informed that his file would be reviewed on May 6, 2008.
[15]
On
May 3, 2008, the applicant submitted some items but the police certificate was
not included. A handwritten note on the letter by the applicant advised that
the certificate would be sent by courier within ten days.
[16]
In
a letter dated May 7, 2008 the officer informed the applicant that he did not
meet the requirements for immigration to Canada.
[17]
On
May 14, 2008, the applicant received an e-mail from the officer advising him
that his additional documents were received by the High Commission on May 7,
2008 and that, even though his application had already been refused and a
letter had been sent advising him of the decision, the new documents had been reviewed
by the officer. However, the information provided was still incomplete and
insufficient to justify re-opening the file.
The decision under
review
[18]
In
his letter of May 7, 2008 informing the applicant that he did not meet the
requirements for immigration to Canada, the immigration officer noted that a
letter had been sent to the applicant on October 22, 2007 asking him to produce
the following evidence within 60 days, or his application would be assessed
based on the information already before the officer:
-
updated
IMM0008 and all relevant Schedules
-
Immigrant
Summary forms
-
RPRF for
Rafiq
-
Proof that
Fahad still meets the definition of a dependent
-
Updated
KSA police certificates
[19]
The
officer further noted that, although a second letter was sent to the applicant
on March 3, 2008 reminding him to provide the requested information within the
specified period, the requested information was never received.
[20]
In
the Computer Assisted Immigration Processing System notes, an entry by the
officer also dated May 7th reads as follows:
REVIEW.
CSQs NOW EXPIRED.
DESPITE MULTIPLE RQSTs GOING BACK OVER 1
YR, UPDATED INFO STILL NOT PROVIDED.
APPL’N REFUSED.
Relevant legislation
[21]
The
following provisions of the Act are relevant to the present review:
|
11. (1) A foreign national must, before entering
Canada, apply to an officer for a visa or for any other document required by
the regulations. The visa or document may be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
[…]
|
11. (1) L’étranger doit,
préalablement à son entrée au Canada, demander à l’agent les visa et autres
documents requis par règlement. L’agent peut les délivrer sur preuve, à la
suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se
conforme à la présente loi.
[…]
|
|
16. (1) A person who makes an application must
answer truthfully all questions put to them for the purpose of the
examination and must produce a visa and all relevant evidence and documents
that the officer reasonably requires.
(2) In the case of a foreign national,
(a) the relevant evidence
referred to in subsection (1) includes photographic and fingerprint evidence;
and
(b) the foreign national must
submit to a medical examination on request.
[…]
|
16.
(1) L’auteur d’une demande au titre de la
présente loi doit répondre véridiquement aux questions qui lui sont posées
lors du contrôle, donner les renseignements et tous éléments de preuve
pertinents et présenter les visa et documents requis.
(2) S’agissant de l’étranger,
les éléments de preuve pertinents visent notamment la photographie et la
dactyloscopie et il est tenu de se soumettre, sur demande, à une visite
médicale.
[…]
|
[22]
The
following provision of the Federal Court Immigration and Refugee Protection
Rules, SOR/2002-232, is also pertinent:
|
22.
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.
|
22. Sauf ordonnance contraire
rendue par un juge pour des raisons spéciales, la demande d’autorisation, la
demande de contrôle judiciaire ou l’appel introduit en application des
présentes règles ne donnent pas lieu à des dépens.
|
The issues
[23]
The
applicant raises the following issues:
1.
Did the
officer make erroneous findings of fact with respect to the application that
were patently unreasonable? Specifically, did the officer mistakenly determine
that since April 2007 the Canadian High Commission had sent multiple requests
for required information / documentation to the applicant?
2.
Did the
officer breach the principles of natural justice by providing the applicant
with less than 60 days to obtain the Saudi Arabian police clearance
certificates when the officer knew or ought to have known that this was an
insufficient amount of time?
3.
Are there
special reasons for the awarding of costs in favour of the applicant?
The standard of review
[24]
Since
the Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, the standard of review for questions of fact or mixed fact
and law is reasonableness simpliciter. For questions of law, the
standard of review is correctness.
[25]
Breaches
of the rules of natural justice or procedural fairness are also subject to the
standard of review of correctness (Juste v. Minister of Citizenship and Immigration,
2008 FC 670, at paragraphs 23 and 24; Bielecki v. Minister of Citizenship
and Immigration, 2008 FC 442, at paragraph 28; Hasan v. Minister of
Citizenship and Immigration, 2008 FC 1069, at paragraph 8).
[26]
Decisions
of a visa officer are subject to a standard of review of reasonableness (Oladipo
v. Minister of Citizenship and Immigration, 2008 FC 366, at paragraph 23).
Analysis
1. Did the officer
make erroneous findings of fact with respect to the application that were
patently unreasonable? Specifically, did the officer mistakenly determine that
since April 2007 the Canadian High Commission had sent multiple requests for
required information / documentation to the applicant?
[27]
The
applicant claims that the Canadian High Commission committed errors as to his
mailing address and prevented effective communication with that office until
February 14, 2008, when he enquired about the status of his file.
[28]
In
its response, the Canadian High Commission pointed out the outstanding documents,
including the Saudi Arabian police certificate.
[29]
There
is no debate on this point. It is only when the applicant’s representative
received the Canadian High Commission’s letter dated March 3 on March 11, 2008,
giving him a 60-day deadline to provide the materials, that a problem arose.
[30]
The
applicant’s representative advised the Canadian High Commission that 60 days were
insufficient to obtain the police clearance certificates with the translations,
and requested an extension of time.
[31]
A
second extension of time request was sent on April 9 but it was only on April
22, 2008 that the extension of time was refused and it was indicated that the
file would be reviewed on May 6, 2008.
[32]
The
applicant argues that it is clear from both the refusal letter of May 7, 2008
and the e-mail of May 14, 2008, that the officer, in rendering
his decision, believed the applicant had ample time to submit all the required
documents. The respondent claims the applicant had enough time (60 days)
from March 3, 2008 to provide the materials.
[33]
Evidently,
this is a mistake of fact since the applicant only received the letter on March
11, 2008, which would have given the applicant until May 11, 2008 (60 days) to
produce the materials. However, by then the negative decision had already been
rendered on May 7, 2008.
[34]
This
mistake of fact was caused by the officer who mistakenly believed that the
applicant had failed to respond to repeated demands and gave him less than the
60 days to comply before the decision was rendered. This mistake of fact was
crucial in the officer’s decision.
[35]
This
mistake was the origin of an unreasonable conclusion which cannot fall within
the range of acceptable outcomes from the facts as elaborated in Dunsmuir,
supra. It clearly constitutes a reviewable error.
2. Did the officer
breach the principles of natural justice by providing the applicant with less
than 60 days to obtain the Saudi Arabian police clearance certificates when the
officer knew or ought to have known that this was an insufficient amount of
time?
[36]
The
applicant submits that the 60-day deadline to obtain the police clearance
certificate was not only insufficient to obtain, translate and submit the
materials but was also in effect, less than 60 days as pointed out
previously.
[37]
The
respondent answers that no evidence was adduced to show the time really
required to produce the documents which were the applicant’s responsibility to
produce.
[38]
The
granting of an extension of time is discretionary and the seekers must give
reasons justifying the delay required. Some cases have interpreted this condition
stricly: Tantash v. Canada (M.C.I.), [2008] F.C.J. No. 729 (QL). Other
cases have adopted a less restrictive interpretation, explaining that a visa
officer must be flexible and understanding on a request for an extension of
time: Gakar v. Canada (M.C.I.), [2000]
F.C.J. No. 661 (QL), 189 F.T.R. 306; Ching-Chu v. Canada (M.C.I.),
[2007] F.C.J. No. 1117 (QL).
[39]
The
applicant claims that the officer was not only too rigid in deciding the
request, but his decision to grant only 60 days had not expired when he
rendered his decision on May 7. In my view, this constitutes a reviewable
error.
3. Are
there special reasons for the awarding of costs in favour of the applicant?
[40]
The
applicant seeks costs against the respondent in this case, alleging that the
respondent’s negligence and error in registering an erroneous mailing address
caused him unnecessary time and expense. The respondent contests this demand
arguing that pursuant to rule 22 of the Federal Courts Immigration and
Refugee Protection Rules no costs shall be awarded unless the Court is
satisfied there are special reasons to do so.
[41]
Rule
22 sets out an exceptional provision which must be strictly interpreted unless
special reasons are established and the costs are related to the litigation
before the Court (Ratnasingam v. Minister of Public Security and Emergency
Preparedness, 2007 FC 1096, at paragraph 34).
[42]
In
the present case, the applicant has not established special reasons to award
costs since the officer’s registered information was erroneous and his refusal
of extension of time was not made with malicious intent. Therefore, no costs
will be awarded.
Conclusion
[43]
The
application for judicial review will be granted.
JUDGMENT
THE
COURT ORDERS:
The application
for judicial review is granted.
The decision
rendered by an immigration officer at the High Commission of Canada in London,
England, dated May 7, 2008, rejecting the applicant’s application for a
permanent resident visa as a member of the Quebec economic skilled worker
class, is quashed and the matter is sent back to a different immigration officer
for a new determination.
No costs
will be awarded.
There
are no questions for certification.
“Orville
Frenette”
Email this Content