Date: 20110321
Docket: IMM-1908-10
Citation: 2011 FC 344
Ottawa, Ontario, March 21, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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DELISHA ABBOTT
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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]
This
is an application for judicial review of the decision of L. Miggiani,
Immigration Officer, Citizenship and Immigration, dated March 16, 2010 and
received by the Applicant on March 22, 2010. The letter advised the
Applicant that she had been withdrawn from the principal applicant’s
application for permanent residence from within Canada on humanitarian and compassionate grounds,
on which she had been listed as a dependent.
[2]
The
Applicant seeks an order setting aside the decision of the Immigration Officer
and a declaration that she is approved in principle for landing within Canada on humanitarian and
compassionate grounds.
[3]
Based
on the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[4]
The
Applicant, Delisha Abbott, is a citizen of St. Vincent. Her mother, Deann Abbott, the principal
applicant (PA), submitted a Humanitarian and Compassionate (H&C)
application in 2003. The Applicant, who was 15 years old at the time, was
included as a dependent on that application. The application was based, in
part, on the abusive behaviour displayed by the Applicant’s step-father.
[5]
In
May 2005, Citizenship and Immigration Canada (CIC) received information that
the Applicant had been charged with assault, assault with a weapon and robbery
in May 2004. These charges were withdrawn in December 2004.
[6]
By
letter dated December 1, 2005, the PA and the Applicant were informed that on
November 17, 2005 a representative of the Minister of Citizenship and
Immigration had approved their request for an exemption pursuant to their
H&C application.
[7]
After
receiving this positive “Stage 1” assessment, the H&C application passed to
“Stage 2” and continued to be processed. “Stage 2” would determine whether the
PA and her dependents were otherwise admissible and met all other requirements
of the Immigration and Refugee Protection Act, RS 2001, c 27 [IRPA].
The PA and Applicant were required to complete new forms, provide other
information and documents and pay a Right of Landing fee.
[8]
In
2007, CIC learned that the Applicant had been charged with theft in August
2006, and with possession of a weapon in September 2006. Subsequent to a
request for information sent to the PA in August 2007, CIC learned that the
charges against the Applicant had been withdrawn in October 2006.
[9]
By
letter dated June 24, 2008 the PA’s solicitor requested that the Applicant be
“separated from Ms. Abbott’s claim. Ms. Abbott is requesting this separation
as she does not agree with the financial decisions that her daughter Delisha
has made.” CIC received information that the Applicant had been in receipt of
provincial social assistance since April 16, 2008.
[10]
In
June 26, 2008 the Applicant’s counsel advised the Etobicoke CIC office that the
Applicant was no longer represented by the PA’s counsel, and had her own
counsel. In July of the same year, the Applicant’s counsel provided the
Etobicoke CIC with submissions and supporting documentation requesting that the
Applicant be exempted from the applicable inadmissibility provisions of the IRPA.
The Applicant has a Canadian-born daughter who has serious health issues. The
Applicant provided documents stating that the specialized care her daughter
needs would not be available in St. Vincent.
[11]
On
November 9, 2008 the Applicant was charged with unlawful entry, threatening
damage to property and mischief. These charges were withdrawn February 2,
2010.
[12]
By
letter dated April 6, 2009, the PA was directed to submit a statutory
declaration regarding her June 24, 2008 request to remove the Applicant from
her H&C application. The PA enclosed such a declaration in a letter dated
September 28, 2009.
[12]
[13]
The
Applicant continued to move forward with her application. The Applicant’s
counsel twice requested an update on the status of the Applicant’s file by way
of letter May 14, 2009 and October 6, 2009. On October 8, 2009 an employee of
the Etobicoke CIC spoke to the Applicant’s counsel, informing her that the
Applicant’s medical was out of date and requesting an update on the status of
any criminal charges laid against the Applicant. The Applicant’s counsel was
contacted again by the Etobicoke CIC by phone on November 19, 2009 seeking
information concerning the disposition of the Applicant’s criminal charges. A
letter dated that same day was sent to the Applicant informing her that her
medical results had expired.
[14]
The
PA’s H&C application was assigned to Immigration Officer Laura Miggiani
(the IO) on March 4, 2010. The IO noted the PA’s affidavit declaring her wish
to remove the Applicant from her application. On March 12, 2010 the IO made a
note to file indicating that she had spoken with the PA’s solicitor who
confirmed that the PA still wished to removed the Applicant from her H&C application
and that the Applicant was aware that she was going to be removed and would
have to file a separate application as she was no longer a dependent of the PA.
[15]
On
March 16, 2010 the IO sent the Applicant a letter informing her that she had
been withdrawn from the PA’s application and a letter to the PA informing her
that her request to have the Applicant removed from her application had been
carried out.
[16]
On
September 30, 2010, the Applicant was charged with two counts of uttering a
forged document.
[17]
On
November 10, 2010 the PA was granted permanent residence status in Canada. The PA listed no
accompanying family members, and answered that she had no dependents.
B. Impugned
Decision
[18]
The
subject of this application for judicial review is the letter dated March 16,
2010 in which the IO advises the Applicant that she has been withdrawn from the
PA’s application for permanent residence from within Canada on H&C grounds on
which she had been listed as a dependent.
[19]
The
letter goes on to inform the Applicant:
You are presently within Canada without status and are required to leave Canada immediately. Failure to depart Canada may result in enforcement action being initiated against
you. Enclosed please find a Voluntary Confirmation of Departure letter,
which you are asked to present to Canadian immigration officials at your port
of exit at least two hours prior to departure.
[Emphasis in original]
II. Issues
[20]
The
Applicant raises the following issues:
(a) Whether
the IO acted without jurisdiction in removing the Applicant from the H&C
application on which she had been listed as a dependent, at the request of the
PA of that application after “Stage 1” approval had been granted?
(b) In
the alternative, if the IO did have the jurisdiction to remove the Applicant
from her H&C application as she did, did she err by failing to properly
reassess the “Stage 1” approval as set out in Inland Processing manual 5:
“Immigrant Applications in Canada made in Humanitarian or Compassionate
Grounds” (IP 5), requiring that the Applicant be provided with notice and an
opportunity to respond?
(c) Whether
the IO erred in law and breached principles of procedural fairness in relying
on extrinsic evidence not provided to the Applicant prior to the decision?
(d) Whether
the IO erred in law in concluding that the Applicant could, in March 2010, be
withdrawn from the PA’s H&C application because she was 22 and no longer
financially dependent when the Applicant was a dependent at the time that the application
was submitted in 2003 and granted “Stage 1” approval in 2005?
[21]
The
Respondent maintains that there is only one issue, the determination of which
should, if this Court adopts the Respondent’s position, conclude this matter:
(a) Whether
the March 16, 2010 letter is a “decision” or determination reviewable under
section 18.1 of the Federal Courts Act (RS, 1985, c F-7)?
[22]
I
will deal with this threshold issue first.
III. Standard
of Review
[23]
The
errors alleged by the Applicant, are all errors of law. The standard of
correctness will be applied.
IV. Argument
and Analysis
A. Is
it a “Decision”?
[24]
The
Respondent argues that the putative subject matter of this application does not
concern the determination of a federal board, commission or other tribunal.
Rather, the decision to remove the Applicant from the PA’s H&C application
was the decision of the PA, and not of the Minister. It is the Respondent’s
position that the March 16, 2010 letter was a courtesy or informational letter
and that jurisprudence from this Court holds that such letters are not
decisions within the meaning of section 18.1 and therefore cannot be reviewed.
[25]
While
the Applicant does not dispute that the PA advised CIC that the Applicant’s
H&C application should be separated from her own, the Applicant argues
that the IO made the decision that the Applicant’s “Stage 1” approval should be
revoked such that she is “in Canada without status and [is] required to leave
Canada immediately.” The Applicant bases this position on the fact that the
letter informing the PA and the Applicant of the “Stage 1” approval was
addressed to both the PA and the Applicant, and the fact that until the letter
of March 16, 2010 every other communication with the Etobicoke CIC led the
Applicant to believe that her claim was continuing to be processed.
(1) Was
the Letter Informational in Nature?
[26]
The
Respondent relies on the Federal Court of Appeal decision in Demirtas v
Canada (Minister of Employment and Immigration), [1993] 1 FC 602 (CA), [1992]
FCJ No 1126 (QL) which holds that informational letters are not decisions or
orders contemplated as being reviewable by way of an application for judicial
review within the meaning of subsection 18.1(2) of the Federal Courts Act.
[27]
In Dimirtas,
above, Justice Gilles Létourneau stated at para 8 (QL),
The appellant contended that the Trial
Judge erred in law by describing the letter of July 11, 1990, from the Director
of the C.I.C. to counsel for the respondents as a "decision"
reviewable by certiorari, and I believe that he is correct. Even if I were to
take a very open-minded approach, I am unable to see how we could describe a
mere informational letter from an administrative official in which, in reply to
a request made to him, he draws his correspondent's attention to the existence
of transitional legislative provisions and to the fact that a new
quasi-judicial body was already seized of the cases which the correspondent
wished to have transferred, as a "decision", and moreover a decision
which granted or denied rights. In addition, in the days preceding the exchange
of correspondence between the Director and counsel for the respondents, the new
Immigration and Refugee Board had already informed the respondents that it was
seized of their claims and that it was preparing to set a date for hearing. If
counsel for the respondents intended to challenge the Board's jurisdiction over
his clients' claims, he should have done so by making an objection before the
Board and not by making a request to an official to transfer the files to another
section.
[28]
The
Respondent considers the case of Nkumbi v Canada (Minister of
Citizenship and Immigration) (1998), 160 FTR 194, 50 Imm LR (2d) 155 (TD) to
be analogous to the present matter. In that case, Justice Pierre Blais relied
on the decision in Demirtas, above, and Justice William McKeown’s
decision in Carvajal v Canada (Minister of Citizenship and Immigration)
(1994), 82 FTR 241 (TD), 48 ACWS (3d) 787 to hold that a letter from an
immigration counsellor explaining that the applicant could not make a new claim
for refugee status because a departure order had been made against her but not
executed was not a reviewable decision as the letter was informational only.
The counsellor did not make the departure order, nor was she empowered to
evaluate it or quash it.
[29]
The
Court cited secondary source material at para 39 of Nkumbi, above, to
illustrate that the sending of a letter by an immigration officer is similar to
the exercise of a limited power:
The person having the limited power makes
a decision as soon as the citizen meets the objective conditions set in the Act
or Regulations. The former has no choice as to the substance of the decision to
be made when the objective conditions set by the legislator are met. The
application of these conditions does not pose problems of either assessment or
interpretation. The decision requires (little or) no judgment on the part of
the decision-maker. Her or she does not make a decision which requires choices
to be made In this regard, there is no real decision-making authority.
Licensing
generally involves the exercise of a limited power. In the municipal context,
for example, a renovation permit is issued as soon as the applicant meets the
objective conditions set by the municipality. The agency seized of the application
in such a situation has no freedom of choice in the decision to be made.
[30]
The
Court concluded that the decision which could have been challenged would have
been the departure order itself.
[31]
Similarly,
in Carvajal, above, the immigration officer wrote to the applicants to
remind them that they were ineligible for permanent residency status because of
an earlier determination for which they had not sought judicial review. The
application was dismissed, in part, based on the fact that the officer communicating
the information was not empowered to make the decision that the applicants
wished to challenge.
[32]
The
Respondent submits that as in Nkumbi, Carvajal and Demirtas,
above, the IO’s letter in the present case was an informational or courtesy
letter informing the Applicant of the PA’s decision. The IO was not exercising
any discretion with respect to the matter and the letter is therefore not a
“decision” that determined any substantive right.
[33]
The
Applicant cites the decision of Justice Russel Zinn in Khadr v Canada,
2010 FC 715, [2010] 4 FCR 36 for the proposition that statements that have a
direct impact on the applicant constitute a decision that is subject to
judicial review. Additionally, the Applicant cites Markevich v Canada,
[1999] 3 FC 28, 163 FTR 209 (TD) (overturned on other grounds) in which
Justice John Evans notes, at para 13, that in determining whether or
not some form of administrative action is subject to judicial review it is
important to ask if the action affects the rights or interests of individuals.
[34]
The
Applicant submits that the decision communicated to her in the letter of
March 16, 2010 had a very serious impact on her rights and
interests. The Applicant considers that, in essence, the IO decided to rescind
the Applicant’s “First Stage” approval, which resulted in the Applicant losing
her status in Canada. The Applicant submits
that the decision is final in nature.
[35]
The
Applicant distinguishes the present case from Demirtas, Nkumbi
and Carvajal, above. In those cases the applicants sought judicial
review of a letter from a person or body who was not authorized to make the
decision requested of them, while in the present matter the decision was made
by an Immigration Officer with delegated authority to determine H&C applications.
[36]
In
my view, the March 16, 2010 letter was informational in nature. The decision
that the IO reported to the Applicant was unquestionably the decision of
the PA. The fact that the Applicant lost her status in Canada as a result of the PA’s
decision is an unfortunate, but logical outcome.
[37]
The
Applicant’s submission that the decision is final and affects her substantive
rights and thus can be considered to be a decision for the purpose of an
application for judicial review is illusory. It is clear that the Applicant
can submit her own independent H&C application. There is nothing final in
the nature of the letter such that it precludes the Applicant from continuing
to pursue the same legal avenue of submitting an H&C application.
[38]
Clearly,
it would be unfair to require the PA to maintain the Applicant’s legal status
in Canada by allowing her to
remain as a dependent on her application when the Applicant repeatedly behaved
in ways that could have jeopardized, or at the least delayed, the processing of
the PA’s application. Had the Applicant been found to be inadmissible at Stage
2 of the process, the PA would have been inadmissible too and consequently, unable
to obtain permanent resident status.
[39]
On
the other hand, given the lengthy processing times H&C applications entail,
it seems unfair that the Applicant is being, firstly, denied the benefit,
temporary as it is, of having a regularized status in Canada while awaiting a Stage
2 determination and secondly, of being deprived of the time, paperwork and
effort the Applicant has already contributed to obtaining a positive Stage 2
decision. This must be especially bitter for the Applicant to bear because, as
she points out, all communication she had with CIC up until the letter in
question indicated that her application was being normally processed. I will
add parenthetically, that while the Applicant claims in her written submissions
to have been surprised by the affidavit of the PA effecting her removal from
the application, the Field Operations Support System (FOSS) notes indicate that
the Applicant was well-aware of the situation.
[40]
The
Applicant adds that in the present matter the Respondent can cite no
legislative provision which would be violated by the continued processing of
the Applicant’s H&C application separately from that of the PA’s. This
might be true, but it is equally true that there is no policy or legislative
provision that I can find that would allow CIC to essentially bifurcate the
applications at this stage of the processing.
[41]
The
Applicant argues that the letter communicating the First Stage approval was
addressed to the Applicant as well as to the PA. However, in Gomes v Canada (Minister of
Citizenship and Immigration), 2003 FC 1217, 126 ACWS (3d) 486 Justice
Danièle Tremblay-Lamer dealt with a case in which dependent children sought to
be severed from the permanent residency application of their father. The
dependents were full-time students at the time the application was made and
were therefore considered as such throughout the process. However, once their
father was found to be inadmissible due to medical issues, the dependents tried
to argue that the fact that each family member received a separate acceptance
letter was evidence that they had been treated separately. Justice Tremblay-Lamer
disagreed. The dependents could have severed their application, but never
requested to be treated separately from their father until he was found to be
inadmissible. Moreover, it was clear that the positive H&C determination
was based on the family’s application as a unit.
[42]
Similarly,
in the present case, I do not consider the fact that the letter granting
Stage 1 approval was addressed to both the PA and the Applicant to be
persuasive evidence that the Applicant was granted Stage 1 approval which has
since been unlawfully revoked. It is clear that the Applicant received Stage 1
approval as a dependent of the PA, based on a consideration of the hardship
that the PA would face in having to make an application from outside of the
country. To separate the applications, but allow the Applicant to retain for
herself the benefit of the consideration that was taken on the part of the PA would
be specious.
[43]
I
reiterate, as Justice Tremblay-Lamer did in Gomes, above, that the
Applicant remains free to make her own application at any time.
[44]
The
conclusion that the letter is informational only is sufficient to dispose of
this application for judicial review. This conclusion also curtails the
Applicant’s other arguments. She fails to raise a reviewable error, but for
completeness her submissions are examined below.
B. Is There Any
Other Reviewable Error?
(1) Did the IO
Act Outside of Her Jurisdiction?
[45]
The
Applicant argued that neither IRPA nor the Immigration and Refugee
Protection Regulations, (SOR/2002-227) [IRPR] authorized the removal of the
Applicant from the H&C application in the manner carried out by the
IO. The Applicant submits that while not all positive “Stage 1” decisions will
lead to permanent residency, the effect of the two stage process is to grant a
conditional permanent residency at Stage 1, subject to the requirement that the
applicant and any accompanying family members not be otherwise inadmissible.
It is the position of the Applicant that the basis on which a refusal can properly
be issued does not include the preference of a principle applicant as to the
continued processing of a dependent.
[46]
The
Respondent reiterates in his submission that the Applicant was removed from the
PA’s application at the behest of the PA, not the IO, and that it was entirely
within the discretion of the PA to make such a request. While all family
members must be listed in the application and examined for admissibility, the
decision to include a family member for concurrent processing as part of the PA’s
application is at the sole discretion of the PA. According to the Respondent,
it is completely irrelevant that the PA was “approved-in-principle” – the PA is
at liberty at any time during the processing able to request the withdrawal
from her H&C application of a dependent family member for the purposes of
concurrent processing.
(2) Did
the IO Fail to Properly Reassess the Applicant’s Stage 1 Approval?
[47]
The
Applicant submits that the IO erred by failing to properly reassess the “Stage
1” approval. The Applicant rests this argument on the guidelines in the IP 5
manual which provides that a Stage 1 approval can be revisited if significant
factors come to light, such as the withdrawal of an undertaking. The Applicant
submits that she does not fit in this category, as at all relevant times during
her processing she was a child of the PA under 22 years of age. The Applicant
further submits that where a Stage 1 decision is revisited or reopened, in
cases of misrepresentation or fraud, the person must be given notice and an
opportunity to respond to any allegations of misrepresentation. The IO never gave
the Applicant any such notice, rather, any communication she had with CIC prior
to the March 16, 2010 letter indicated that her application was undergoing a
Stage 2 determination.
[48]
In
response, the Respondent maintains that the Applicant fails to appreciate that
the decision to concurrently process her dependent application as an
accompanying family member rested solely within the jurisdiction of the PA. Consequently,
once the Applicant was dropped from the PA’s application the IO had no
corresponding duty to re-evaluate the Applicant’s Stage 2 approval.
(3) Did
the IO Breach the Applicant’s Right to Procedural Fairness?
[49]
The
Applicant makes lengthy written submissions arguing that the IO erred in law
and breached principles of procedural fairness in relying on extrinsic evidence
not provided to the Applicant prior to the decision. The reasons obtained by
the Applicant pursuant to Rule 9 of the Federal Courts Rules, (SOR/98-106)
consisting of FOSS notes, make reference to the PA’s affidavit requesting the
Applicant’s removal. The Applicant claims that she had no knowledge of the
existence of the affidavit prior to receiving the reasons, and as such it is extrinsic
evidence and a copy ought to have been provided to the Applicant for comment.
[50]
Again,
the Respondent submits that the Applicant misunderstands that the decision was
taken by the PA, not the IO. The affidavit was merely a confirmation of the
PA’s wish to remove the Applicant from her H&C application.
[51]
I
must agree with the Respondent. It is hard to see what effect allowing the
Applicant to comment on the affidavit prior to the issuance of the letter would
have had. Unlike the case law cited by the Applicant, it is not clear that any
comments made by the Applicant would have had any effect on the course of
action taken by the IO. As the Respondent submits, in the present case there
was no determination made by the IO to which the rules of procedural fairness
would even attach. There was no room in this decision-making process, which was
undertaken solely by the PA, for the Applicant to participate in a meaningful
way.
(4) Lock-in
Date
[52]
The
FOSS notes provide as part of the reason for the March 16, 2010 letter that the
Applicant is 22 years old and no longer a dependent. When the H&C
application was initially submitted the Applicant was 15. Stage 1 approval was
granted in 2005 when the Applicant was 17. The Applicant argues that the IO
erred in concluding that the Applicant’s age at the time the letter was
prepared was a proper basis for concluding that the Applicant was no longer a
dependent child. Age, for the purpose of assessing dependency in a sponsorship
application, or even a Skilled Worker application, is locked in at the date of
receipt of the application.
[53]
The
Respondent submits that this is a red-herring. The Respondent argues that the
Applicant’s application as a dependent family member was contingent on the PA’s
assent to processing – assent that could be withdrawn at any time. The IO
simply noted that the Applicant, no longer a dependent, was now in a position
to file her own independent H&C application.
[54]
I
accept the Respondent’s submission on this point.
V. Conclusion
[55]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
[56]
No
question to be certified was proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT is
that this application for judicial review is dismissed.
“ D. G. Near ”
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