Date: 20070501
Docket: IMM-574-06
Citation: 2007 FC 440
BETWEEN:
PLACIDO
PASCUA GAOAT JUNIOR
Applicant
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of the decision of Charles Godfrey, an
immigration program manager, the “Officer”, dated December 23, 2005, wherein
the Officer rejected the applicant’s request for humanitarian and compassionate
(H & C) relief pursuant to subsection 25(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27.
[2]
Placido
Pascua Gaoat Jr., the applicant, applied for permanent residence after his
wife, Merrylyn Agabao, was granted permanent residence.
[3]
Gaoat
and Agabao were married on April 24, 2005. Shortly thereafter Agabao was granted
permanent resident status. Agabao did not declare to Citizenship and
Immigration Canada that she got married and, as a result, Gaoat’s application
was rejected on the grounds that he was not a member of the family class
pursuant to section 117 of the Immigration and Refugee Protection
Regulations, SOR/2002-227.
[4]
In
a letter dated October 26, 2005, Gaoat was informed that he was not a member of
the family class and he was invited to make submissions on any H & C
considerations which would justify allowing his application to be processed in
any event.
[5]
In
a letter dated December 23, 2005, the applicant received formal notification
that his application had been rejected because he is not a member of the family
class. In a letter of the same date, he was informed of the Officer’s decision
that there were no H & C considerations warranting relief from the decision
that found he was not a member of the family class.
[6]
The
applicant submitted applications for leave for judicial review for both the H
& C decision and the decision rejecting his application on the ground that
he is not a member of the family class. Leave for the latter was denied by Mr. Justice
Teitelbaum on May 29, 2006.
[7]
The
only issue raised by the applicant is the issue of the adequacy of the reasons.
As this is an issue of procedural fairness, the appropriate standard of review
is correctness (Sketchley v. Attorney General, 2005 FCA 404).
[8]
The
respondent submits that the applicant cannot complain of inadequate reasons
because he never requested a more comprehensive explanation for the decision. I
agree.
[9]
In
Marine Atlantic Inc. v. Canadian Merchant Service Guild (2000), 258 N.R.
112, the Federal Court of Appeal adopted the reasoning of Evans J. (as he then
was) in Liang v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 1301 (QL), that “the duty of fairness
normally only requires reasons to be given on the request of the person to whom
the duty is owed and, in the absence of such a request, there will be no breach
of the duty of fairness” and stated that
[5] . . . We
agree with Evans J. Before seeking judicial review of a tribunal order on the
grounds of failure to provide reasons, there is an obligation on parties to
request reasons from the tribunal. If the tribunal refuses or provides
inadequate reasons, resort to the Court may be appropriate. However, it would
unduly complicate the administration of justice if parties could resort to the
Court to seek to quash orders of tribunals on the grounds of failure to provide
reasons without first requesting them from the tribunal.
[6] A request to the Board may
be met with reasons or alternatively, an explanation why reasons are not, in
the view of the Board, required in the circumstances. We see no prejudice to a
party before a tribunal having to request reasons before resorting to judicial
review in the Court.
[7] We should add that while a
request to the tribunal for reasons is the usual requirement, there may be
circumstances in which the obligation of the tribunal to provide reasons is so
plain and obvious, that upon no reasons being provided, recourse to the Court
without a request for reasons from the tribunal may be appropriate. Perhaps
there may be circumstances in which a party for some reason cannot request reasons
from the Board. Such situations, we think, would be exceedingly unusual.
[8] In this case, the failure to
request reasons is fatal to this aspect of the judicial review applications.
While the matter may be of significance to the applicant, there is no
satisfactory explanation why the applicant could not have requested reasons
from the Board. This ground of the applicant's judicial review must be
rejected.
[10]
In
Marine Atlantic, no reasons were provided at all. Subsequent
jurisprudence from the Federal Court has held that the rule from Marine
Atlantic applies even in cases where reasons were provided.
[11]
For
example, in Gardner v. Attorney General, 2004 FC 493, Mr. Justice
Gibson held that the rule from Marine Atlantic applies such that even if
some reasons were provided initially the applicant is still required to request
further reasons before making a claim in Court that the reasons are inadequate.
[12]
Mr.
Justice Blanchard arrived at the same conclusion in Hayama v. Minister of
Citizenship and Immigration, 2003 FC 1305. In that case, an
immigration officer sent the applicant a simple refusal letter, as in the
present case, and the Court held that this letter along with the CAIPS notes
constituted the reasons:
[13] .
. . The applicant further argues that he did not request reasons because he
already had the program manager's reasons. He contends that this Court has
determined that a refusal letter and the CAIPS notes could constitute reasons
and that he already had those documents. The applicant argues that, since these
documents provide no analysis or "reasons" for the decision, the
program manager cannot subsequently file an affidavit in a judicial review
application as supplemental reasons.
[14] In
Marine Atlantic Inc. v. Canadian Merchant Service Guild (2000), 258 N.R.
112 (F.C.A.), a post-Baker decision, Rothstein J.A. stated as follows:
[.
. .]
[15] The
comments of Rothstein J.A. are dispositive with respect to the failure of the
respondent to provide reasons. The applicant did not request reasons. His
argument that he had the reasons and therefore there was nothing left to
request is without merit. If the applicant was unsatisfied with the decision
letter and felt it did not adequately explain the decision, a request should
have been made for further elucidation. There is no evidence that such a
request would have been refused. I therefore conclude that, in the
circumstances of this case, there is no breach of duty of fairness due to an
absence of reasons, or inadequacy of reasons.
[13]
In
my opinion, the fact that the applicant in the present case failed to ask for
further reasons bars him from claiming on judicial review that the duty of
fairness owed to him was breached because the reasons provided were inadequate.
[14]
Consequently,
the application for judicial review is dismissed.
[15]
Upon
hearing counsel for the parties on the possibility of certifying a question
with respect to the timing and/or the adequacy of the reasons in this matter, I
am of the view, given the clear decision in Marine Atlantic, supra,
that no certification is warranted.
“Yvon
Pinard”
Ottawa, Ontario
May
1, 2007
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