Date:
20090521
Docket: IMM-3939-08
Citation: 2009 FC 513
Ottawa, Ontario, this 21st day of May
2009
Present: The Honourable Orville
Frenette
BETWEEN:
Kaladevi BAGEERATHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) of a decision made
by an immigration officer at the High Commission of Canada in Colombo, Sri
Lanka (the “Visa Post”) rejecting the applicant’s application for her husband
to be granted permanent residence.
The Facts
[2]
The applicant
is a young Tamil woman from northern Sri Lanka, who fled the war raging there to
come to Canada in 2003, together with
her son. They claimed refugee status, and were determined Convention refugees
in the same year. She applied for permanent residence for herself, her child,
and for her husband, Mr. Pageerathan Subramanian - who remains in Sri Lanka - in November 2003.
[3]
Although
the Act provides for concurrent processing of permanent residence applications
made by accepted refugees and their spouses - to facilitate family
reunification - the applicant and her child were granted permanent residence in
September 2005, but her husband was not.
[4]
Her
husband’s processing remained delayed until she applied to this Court for an
order of mandamus.
[5]
Leave
was granted, and the Court was to hear the mandamus application; however
before the hearing the respondent advised the Court that: “An alternate remedy
exists in the form of a Temporary Resident Visa (“TRV”). A TRV would allow the applicant
to be reunited (albeit not on a permanent basis) with his family here in Canada.” This was argued to
dissuade the Court from granting an order of mandamus.
[6]
Justice
Michael L. Phelan heard oral submissions and decided, based on the respondent’s
statement that because “there may be an alternate solution to this case”, the
hearing should be adjourned until the respondent could advise the Court “with
respect to the issuance of a temporary resident’s visa and in Canada processing
of the sponsorship application so as to permit the reunification of the
sponsored father with his 6-year-old son and wife.” The Court gave the respondent
one week to confirm this.
[7]
The respondent’s
argument that the applicant’s husband could have asked for a temporary visa
turned out to be unreliable. Once pressed to give a firm answer the respondent
stated that: “The Minister cannot assure the Court that the Applicant would
qualify for the issuance of a temporary resident visa.”
[8]
The
Court heard the mandamus application and granted it. The respondent was
given 90 days (until August 5, 2008) to decide the permanent residence
application the applicant had made for her husband.
[9]
In
his decision dated May 13, 2008, Justice Phelan described the Visa Post’s
conduct as an example of “bureaucratic paralysis”. The Court noted that the
applicable statutory provisions contain “mandatory language”, citing section 141
of the Immigration and Refugee Protection Regulations, SOR/2002-227,
(the “Regulations”) in particular. The Court held that this case “is a
disturbing instance of inaction made more egregious by the furthering of the
delay during the judicial review process” and concluded:
[25] The
Court has issued an Order requiring the Respondent to make a determination of
the application within 90 days. The Court has retained jurisdiction to deal
with any issues which may arise that affect the mandatory order.
[26] The
Court expects that, barring some unusual circumstances, the Respondent will
grant the application prior to the deadline. Further unjustified delay could be
contempt of this Court and could lead to penalties and costs.
[10]
On
May 29, 2008, the applicant’s husband fled from Sri Lanka to India, as he claimed he feared for his life.
[11]
The
Visa Post official in charge of the file, Mr. Robert Stevenson, who was then
Visa Post’s First Secretary, Immigration, (the “First Secretary”) rejected the applicant’s
request that his file be transferred from Sri Lanka to India stating:
.
. . per R11 of IRPA Regulations, Mr. Subramaniam does not meet the criteria for
having his application processed by our High Commission in New Delhi, so I am not prepared to transfer his application there.
Given the above, I must insist that Mr. Subramaniam appears for interview
in Colombo. Should he choose not to do so, I will
make an admissibility decision based on the information I have before me.
[12]
Mr.
Stevenson subsequently refused to carry out an admissibility interview by
teleconference. He provided the applicant’s counsel with a letter threatening
that should the applicant’s husband fail to attend in person “FOR ANY REASON,
your application may be refused without notice”.
[13]
The applicant
brought a motion before Justice Phelan, asking the respondent be directed to
transfer the file to its office in India, and seeking prohibition against Mr. Stevenson
making a decision without interviewing the applicant’s husband.
[14]
On
July 21, 2008, the Court refused to intervene finding that “any errors in the
processing of the permanent residence application can be addressed in a
judicial review of any refusal to approve including issues of bad faith by the
visa officer and the ability of a directed decision”.
[15]
The
Visa Post remained, therefore, under the Court’s order to make a decision by
August 5, 2008.
[16]
The applicant’s
lawyer asked that the First Secretary change his mind, both with respect to his
mention of rejecting the file “without notice”, and with respect to his refusal
to interview the applicant’s husband by phone or videoconference. He also noted
that: “As the Federal Court is still seized of this, and we have to report back
to the Court, I suggest you communicate your decision to the Department of
Justice and to me.”
[17]
On
August 4, 2008, the First Secretary rejected the application “without notice”,
on the basis that the applicant’s husband “failed to appear for the interview.”
[18]
Although
the First Secretary heard that the applicant’s husband had left Sri Lanka, and knew his current
address in India, he addressed his decision to a rooming house in Colombo where the applicant’s
husband used to live. He did not purport to address a copy to the applicant,
the applicant’s lawyer, the respondent’s lawyer or the Court.
[19]
The applicant’s
lawyer asked, after the August 5 deadline had passed, for a copy of any
decision. The respondent’s counsel stated that a decision had been made and
mailed to the applicant’s lawyer, but that the Visa Post would not disclose
what the decision was - even to the respondent’s counsel. After three weeks,
when the applicant’s counsel threatened to apply for an order of contempt, the respondent’s
counsel persuaded the Visa Post to send a copy of the decision by fax.
The Impugned Decision
[20]
The
First Secretary, by letter dated August 4, 2008, refused the applicant’s
husband’s application for a permanent resident visa for the motive that he
failed to attend a scheduled interview - indicating that: “I have reviewed your
reasons for not attending, and I do not find them warranting the offer of
further interview times.”
[21]
He
also noted in his decision that: “Following an examination of the material that
was available, I am not satisfied that you are admissible and that you meet the
requirements of the Act. I am therefore refusing your application pursuant to
subsection 11(1).”
The Issues
[22]
The applicant
raises two issues in this case:
1. Whether
the First Secretary misconstrued the statutory basis for his jurisdiction, or
otherwise erred in law in arriving at his decision?
2. Whether
the First Secretary violated natural justice or acted in bad faith?
The Standard of Review
[23]
The
jurisprudence has established that the standard of review for the assessment of
findings of facts or mixed facts and law, is one of reasonableness. In
questions of law, the standard is one of correctness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190).
Deference is to be granted to decisions of administrative tribunals on
questions of facts (Minister of Citizenship and Immigration v. Khosa,
2009 SCC 12).
[24]
The
Supreme Court of Canada in Dunsmuir, supra, stated at paragraph
47:
.
. . In judicial review, reasonableness is concerned mostly with the existence
of justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[25]
Breaches
of the rules of natural justice or of procedural fairness are governed by the
standard of review of correctness (Juste v. Minister of Citizenship and
Immigration, 2008 FC 670, paragraphs 23 and 24; Bielecki v. Minister of
Citizenship and Immigration, 2008 FC 442, paragraph 28; Hasan v. Minister
of Citizenship and Immigration, 2008 FC 1069, paragraph 8).
Analysis
[26]
Regarding
the first issue, the applicant contends that even before the First Secretary
issued his decision it was a foregone conclusion that he was erring in law. He
had decided, under section 11 of the Regulations, that he had jurisdiction
to keep the file in Sri Lanka, and that there was a statutory presumption
against letting the applicant’s husband present himself to any other Visa Post.
[27]
The
applicant claims that the First Secretary presumed incorrectly that the
application should be processed as if it were an ordinary immigrant visa
application. He presumed incorrectly that this gives him jurisdiction to apply
a statutory presumption that the file cannot be transferred to another office.
[28]
I
believe that the reasons and the justifications given by the First Secretary
for refusing to allow the file to be transferred and refusing to interview the applicant’s
husband by telephone or videoconference were debatable. The former claimed to
have special expertise in deciding the admissibility of Sri Lankans, making it
unacceptable that an immigration officer in India should make the decision. The admissibility of
Sri Lankans to Canada is routinely decided by
offices other than the Visa Post in Sri Lanka. Any Sri Lankan residing outside Sri Lanka can apply to the office
in the region he resides in. Moreover, under paragraph 176(2)(a) of the Regulations,
a Convention refugee’s spouse can present himself at any immigration office in
the world. Every single Sri Lankan who has applied for permanent residence
within Canada (as an accepted Convention refugee, on humanitarian grounds or in
an inland spousal sponsorship) is assessed by an officer in Canada.
[29]
I
also find the First Secretary’s determination to retain decision-making
authority to be illogical, as nothing prevented him from sharing any legitimate
admissibility concerns he had with his counterparts in New Delhi. Moreover, his refusal
to interview the applicant’s husband by phone or videoconference was also unreasonable
and perverse. The applicant’s husband could presumably have been interviewed by
the First Secretary via telephone or videoconference at the embassy in India. In deciding as he did,
the First Secretary assumed there were no options when in reality other
alternatives were available to him in these particular circumstances.
[30]
The
First Secretary’s finding that the applicant’s husband was merely
“uncomfortable with the current situation in Sri Lanka . . . as are many citizens” is in my
opinion, illogical and without regard to the evidence before him. The applicant’s
husband was not merely uncomfortable with a general situation, applicable to
all citizens of Sri
Lanka; he
belongs to a particular social group at particular risk of being abducted,
tortured, or murdered. This was taking place in a context where young Tamil
men, like him and his friends, are routinely being abducted and tortured or
murdered in Colombo. The murder of his
friend was reported in the news, and a published news report confirms it took
place near the residential address already on file for the applicant.
[31]
Recognizing
the particular circumstances in this case and the significant length of time
this family has been apart I believe that the First Secretary’s refusal to
either move the file, the location of the interview, or modify how the
interview was to be conducted, was without regard to the nature and weight of
the rights at stake in the application. Is it hard to imagine how Canada’s
international law obligation to Convention refugees, or the applicant’s rights
under section 7 of the Canadian Charter of Rights and Freedoms, are met
by an officer insisting that a refugee’s spouse has to put his life in danger
to attend an admissibility interview that could be conducted by other means.
[32]
Regarding
the second issue, the applicant submits that the First Secretary unjustly
refused to disclose his admissibility concerns and refused his lawyer’s request
to respond to such concerns.
[33]
Justice
Phelan observed that the applicant can make submissions with respect to whether
the First Secretary acted in bad faith. The context in which this finding was
made is as follows: the applicant’s submissions on the motion relating to the
First Secretary’s threat are included at pages 166 to 177 of the Applicant’s
Application Record. Bad faith was not pleaded; however, the Court, after
reviewing the motion record, held that even if it did not consider that it had
jurisdiction to grant the motion, it could indicate that “bad faith by the visa
officer and the ability of a directed decision” could be brought to the Court’s
attention in a judicial review application, should the First Secretary follow
through with his threat.
[34]
The
respondent in the present case delayed processing of the sponsorship application for
several years. The justifications given for delay were generally contrived, and the Court found as
much. The Court clearly indicated its expectations that, as the record
indicated no cause for an inadmissibility concern, the applicant’s husband
should likely be granted a visa. Once the First Secretary was required to make
a decision, he was faced with a request that was
reasonable - given the human rights situations in Sri Lanka and the concerns
the applicant had
consistently expressed for her husband’s safety throughout the litigation. The
First Secretary not only misconceived the relevant statutory provisions, he
showed no concern about this when his error was pointed out. The error is
fundamental, as it expresses disregard for the purpose of the statute. It
intersects with his refusal to budge on demanding that a Convention refugee’s
spouse physically return to his country of nationality to be interviewed in
person.
The Remedies
Directed Decision
[35]
The
applicant submits that if her application is granted, because of “bureaucratic paralysis” or bad faith on the part of the
First Secretary, she should be entitled to a “directed decision” or at least to a “specific
decision”, to compensate for her unfair treatment. She argues that the
excessive delay of seven years to process an application for a man whose wife
and child have already obtained refugee status and permanent residence in
Canada since 2003, is eminently unjust.
[36]
The
applicant adds that any additional delay would compound the injustice and
therefore she suggests that this unfair situation justifies the Court to render
a “directed decision” ordering the new panel to render its decision within a
fixed delay, or as was done in Tran v. Minister of Citizenship and Immigration, 2007 FC 806, to order
a judicial review instructing the new officer to grant the humanitarian and
compassionate application (see also Turanskaya v. Minister of Citizenship and
Immigration,
[1997] F.C.J. No. 254 (F.C.A.) (QL)).
[37]
The
respondent does not contest
that subsection 18.1(3) of the Federal Courts Act, R.S.C. 1985, c. F-7, authorizes
this type of order but argues that the jurisprudence justifies the issuance of
specific instructions only in very limited extraordinary circumstances (Rafuse v. Pension Appeals Board, 2002 FCA 31; Johnson v. Minister of
Citizenship and Immigration, 2005 FC 1262; Ali v. Canada (M.C.I.), [1994] 3 F.C. 73
(T.D.), paragraph 18).
[38]
An
analysis of the facts of this case, the excessive delays incurred and the lack
of comprehension and cooperation shown by the First Secretary and his obstinacy constitute, in my opinion, such an
extraordinary situation which justifies this order.
Costs
[39]
The
applicant submits that the case is one which justifies this Court to award
costs against the respondent. She relies upon the decision of Manivannan v. Minister
of Citizenship and Immigration, 2008 FC 1392, where an award of $2,000.00 was
given “for party-party costs” because “[t]he file was handled by different officers and has been mired in delay. Errors
have occurred that have just not
been explained”. Justice Russell stating he had not seen evidence of bad faith
in that file, the demand for a lump sum award of $4,000.00 was reduced to
$2,000.
[40]
The
respondent opposes the demand based upon section 22 of the Federal Courts
Immigration and Refugee Protection Rules, SOR/2002-232, which requires special reasons to award
costs. Special reasons include unnecessary and unreasonably prolongation of
proceedings (Singh
v. Minister of Citizenship and Immigration, 2005 FC 544; Johnson, supra, at paragraph 26; Cortes v. Minister of
Citizenship and Immigration, 2008 FC 642).
[41]
In
the present case, applicant’s counsel has affirmed that he has acted pro bono for the instant
judicial review because the parties do not have the financial capability to pay.
[42]
In a
civil case decided by the Ontario Court of Appeal, an award of costs set at
$4,500.00, was granted to a counsel who had acted pro bono (1465778
Ontario Inc. et al. v. 1122077 Canada Ltd. et al. (2006), 82 O.R. (3d)
757).
[43]
An
examination of the file reveals an excessive delay in processing this matter
due to the First Secretary in Colombo’s lack of sensitivity to the situation of
a Tamil who feared returning to Sri Lanka and being killed in a war. A mandamus was issued on May 7,
2008 ordering the respondent to process this matter within 90 days. This was
not done. Seven days later the officer reviewed the file and raised concerns
which he had refused to raise with the applicant or her counsel before and required
a in-person interview instead
of an interview by videoconference or by telephone.
[44]
I
believe this is a special case which justifies the awarding of costs. In
effect, the officer has circumvented a direct Court order which requires a
sanction.
[45]
In Manivannan,
supra, counsel for the applicant sought a lump sum award for costs of
$4,000.00; Justice Russell fixed them at $2,000.00. In the present case,
counsel is asking for $10,000.00; I believe a sum of $3,000.00 should be
awarded.
Conclusion
[46]
For
all of these reasons, this application for judicial review will be granted.
JUDGMENT
THE COURT ORDERS THAT:
1.
The
application for
judicial review of the decision of Robert Stevenson, Second Secretary
(Immigration) of the High Commission of Canada in Colombo, Sri Lanka, dated
August 4, 2008, is granted.
2.
This
file is transferred to the Canadian High Commission office in New Delhi,
India
for processing.
3.
The
application is to be re-determined by a different officer within ninety (90)
days of this Judgment; who is hereby directed to grant the applicant’s husband
permanent residence in Canada.
4.
The
sum of three thousand dollars ($3,000.00) as costs is awarded to the applicant
against the respondent.
“Orville
Frenette”
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