Date: 20071001
Docket: IMM-6170-05
Citation: 2007 FC 986
Ottawa, Ontario, October
1, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
LASZLO PINTER, KATALIN PINTER,
BETTINA PINTER
LASZLO PINTER AND DORINA PINTER
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision by an immigration officer dated September 27, 2005, which denied the
applicants’ application for permanent residence on humanitarian and
compassionate (H&C) grounds.
[2]
The
applicants seek an order setting aside the decision of September 27, 2005, and
remitting the matter for redetermination by a different officer.
Background
[3]
The
applicants are Laszlo Pinter and Katalin Pinter, their son Laszlo Pinter and
two daughters, Dorina and Bettina Pinter. The applicants are citizens of Hungary. Katalin Pinter is of
Roma ethnicity. The circumstances which caused the applicants to seek refuge in
Canada were set out in the
affidavit of Laszlo Pinter.
[4]
The
applicants experienced discrimination and harassment due to Katalin Pinter’s
Roma background. The children were allegedly beaten up at school, and their
home was broken into. As the threats faced by the applicants grew in intensity,
they chose to flee Hungary and seek asylum in Canada. On September 4, 2000,
the applicants entered Canada with temporary visitor
permits. The applicants claimed refugee protection on October 11, 2000. Their
refugee claim was dismissed by decision dated March 14, 2003.
[5]
On
June 5, 2003, the applicants applied for a Pre-Removal Risk Assessment (PRRA).
The applicants applied for permanent residence on H&C grounds on July 31,
2003. The applicants’ PRRA application was rejected on February 16, 2004, and
their H&C application was refused on March 8, 2004. On March 11, 2004, the
applicants attended at a Citizenship and Immigration Canada (CIC) office and were
advised that both applications had been rejected. The enforcement officer,
Kathy Galloway, gave the applicants their removal orders during this meeting.
[6]
The
applicants applied for leave to seek judicial review of the negative H&C
decision, and by order dated April 7, 2004, Justice Kelen granted a stay of
proceedings for the execution of the removal orders, pending the determination
of their application for judicial review. Leave for judicial review was granted
on July 29, 2004. On February 25, 2005, Chief Justice Lutfy granted the
application for judicial review and ordered that the decision of March 8, 2004
be set aside and remitted for redetermination by a different officer.
[7]
The
applicants submitted a second H&C application on March 31, 2005. On June 23,
2005, a PRRA officer issued a risk opinion with respect to the H&C
application. The PRRA officer was not satisfied that on a balance of
probabilities, the applicants faced a risk to their lives or a risk to the
security of their persons if they were to return to Hungary. The risk opinion was
provided to the applicants, who submitted a rebuttal to the risk opinion.
[8]
A
response to the applicants’ rebuttal of the risk opinion was prepared by the
PRRA officer and forwarded to Kathy Galloway, who had become the officer
responsible for determining the applicants’ H&C application. This document
was not provided to the applicants. On September 27, 2005, the applicants’
H&C application was refused by Kathy Galloway. This is the judicial review
of the negative H&C decision.
Officer’s Reasons
[9]
The
officer set out the allegations by the claimants:
Their
children have had to change schools repeatedly because of bullying and abuse
from other students and students’ parents.
Although
the government is trying to improve things, Gypsies in Hungary are still persecuted.
“it
is not normal to be in fear of leaving home because you may be threatened on
the street…you expect to see your car tires slashed or the walls of your home
defaced with graffiti”.
[10]
The
Board considered that the applicants were self supporting, had improved their
English, and had provided many letters of support.
[11]
The
applicants had been in Canada since 2000, and had
been employed most of that time. They were volunteers for many organizations
and the children were involved in scouts and dancing. It was expected that a
certain level of establishment would occur given that the applicants had been
allowed to remain in the country while their claims were heard. Here, the
establishment was not significant. Although Mrs. Pinter’s brother and cousin
were in Canada, they had more family ties in Hungary.
[12]
The
officer also considered the best interests of the children. The children were
1/8 Roma. The adult applicants stated that they had left Hungary so that their children
could continue to attend school and would not be forced to drop out because of
constant harassment. Both adult applicants managed to complete school, and were
able to support themselves. There was insufficient evidence to conclude that
the children’s education would suffer on their return, although the officer
acknowledged that there would be a significant period of readjustment.
[13]
The
officer gave little weight to the applicants’ evidence that they would be
unable to correspond with the Canadian Embassy because they would be forced to
move repeatedly.
[14]
The
officer considered the evidence of risk faced by the applicants and concluded
as follows:
I
have been mindful that there may be risk considerations which are relevant to
an application for permanent residence from within Canada which fall well below the higher threshold of risk to life
or cruel and unusual punishment. In this regard, I have considered the evidence
put forward by the PA’s; the risk opinion; and the PA’s response to the risk
opinion. I have reviewed and considered the PA’s submissions regarding the risk
they would face in Hungary as well as the risk opinion and the PA’s
rebuttal. I have also reviewed and considered the IRB and PRRA decisions and I
adopt them. The evidence is insufficient to satisfy me that there is a risk to
the lives or the security of the PA’s if they were to return to Hungary.
[15]
The
officer concluded that there were insufficient H&C grounds to justify the
exemption in this case.
Issues
[16]
The
applicants submitted the following issues for consideration:
1. Did the officer err in
assessing the risk threshold and in considering the risk and non-risk factors
in isolation?
2. Did the officer breach
procedural fairness by not disclosing post-application evidence?
3. Was there a reasonable
apprehension of bias?
Applicants’ Submissions
Affidavit of K. Galloway
[17]
The
applicants submitted that the affidavit of Kathy Galloway should be struck from
the record, since it included statements made after the decision was rendered.
It was submitted that the Minister could not respond to an application for
judicial review by procuring an affidavit from the officer who rendered the
decision containing what she considered, the weight she gave to the evidence,
and the reasons for the decision (see Aduengov v. Canada (Minister of
Citizenship and Immigration), [1997] 3 F.C. 468, (1997) 132 F.T.R. 281m
(T.D.)).
Risk Analysis
[18]
The
applicants noted that the officer referred to the threshold for risk as “risk
to their lives or to the security of their persons.” It was submitted that the
officer erred in conflating the risk standards found in the context of refugee,
PRRA and H&C claims, thereby raising the standard of “undue and underserved
or disproportionate hardship” found in the H&C context, to the higher
standards applicable in PRRA and refugee proceedings.
[19]
The
applicants submitted that despite the cursory statement made by the officer
regarding the different standards of risk applicable to H&C, PRRA and
refugee claims, the officer was confused about the nature of the standards. In Beluli
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 898, the Court noted that hardship
could flow from risk, even where the risk was insufficient to justify refugee
protection.
[20]
The
applicants submitted that the standard of “undue and undeserved or
disproportionate hardship” included both risk and non-risk factors, which
should be considered in concert, not in a mutually exclusive manner.
Procedural Fairness
[21]
The
applicants submitted that the officer breached the duty of fairness by failing
to disclose the PPRA officer’s response to the applicants’ rebuttal of the risk
opinion, dated July 28, 2005. It was submitted that the officer substantially
relied upon the undisclosed submissions of the PRRA officer.
[22]
The
applicants submitted that in Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, (1999) 174 D.L.R. (4th) 193, the
Supreme Court of Canada recognized that H&C applicants were owed more than
a minimal duty of procedural fairness. In Haghighi v. Canada
(Minister of Citizenship and Immigration), [2000] 4 F.C. 407, (2000) 189
D.L.R. (4th) 268, the Court found that the duty of fairness had been breached
when the officer considering an H&C application failed to disclose a
negative risk assessment.
[23]
The
applicants submitted that the test for a reasonable apprehension of bias turns
on whether a reasonable person, who is reasonably informed of the facts,
viewing the matter realistically and practically and having thought it through,
would think it more likely than not that a decision-maker was biased (see Ahumada
v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 605,
2001 FCA 97). The applicants submitted that the question hinged upon whether
there was a reasonable apprehension of bias from the perspective of the
unsuccessful refugee claimant.
[24]
The
applicants noted that Kathy Galloway was the enforcement officer who issued a
deportation order against them on March 11, 2004. It was noted that Ms.
Galloway also rejected their H&C application. The applicants submitted that
it was reasonable to assume that the officer was frustrated that the removal
order she had issued had not been carried out. It was submitted that it was
also reasonable to assume that a reasonable person in the applicants’ shoes
might expect the officer to use her new position to again attempt to have them
deported from Canada. The applicants noted
that the officer’s H&C decision highlighted that they were the subjects of
enforceable removal orders.
Respondent’s Submissions
Affidavit of K. Galloway
[25]
The
respondent submitted that Aduengov above only stood for the proposition
that an applicant may not supplement his or her case on judicial review with
facts which were not presented to the tribunal. In the case at hand, the
affidavit of Kathy Galloway addressed procedural fairness arguments raised by
the applicants upon judicial review. It was submitted that jurisprudence has
consistently held that an affidavit from an officer is acceptable to address
such issues (see Qazi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1667).
Risk Analysis
[26]
The
respondent submitted that the officer did not err in subdividing the factors
that were considered in the assessing the H&C application. It was also
submitted that the officer clearly took into account both the risk assessments
done for the refugee and PRRA determinations, and the expanded consideration of
risk which might fall under undue hardship. The officer’s reasons indicated
that risk for H&C purposes might be broader than for PRRA or refugee
purposes. It was submitted that the officer considered the evidence to see
whether any such risk, falling short of persecution, would constitute undue
hardship in the case.
Procedural Fairness
[27]
The
respondent relied upon the cases of Monemi v. Canada (Solicitor General) (2004), 266 F.T.R. 31,
2004 FC 1648, and Bhallu v. Canada (Solicitor General), 2004 FC 1324, which held
that there is no bias in the process simply because the same decision-maker
makes both decisions. It was submitted that the applicants must be able to
point to an actual or perceived event which gave rise to an apprehension of
bias; they have failed to do so. It was submitted that in the case at hand,
there was no unfairness in the process.
[28]
The
respondent noted that Kathy Galloway had issued a removal order against the
applicants, which constituted informational communication rather than an actual
decision (see Daniel v. Canada (Minister of Citizenship and Immigration), 2007 FC 392). It was
submitted that the claim that the officer had acted out of frustration was
offensive and unsupported by any evidence.
[29]
The
respondent conceded that the PRRA officer’s response to the applicants’
rebuttal of the risk opinion was provided to the H&C officer, but was not
forwarded to the applicants. It was noted that the officer had reviewed the
response, but found that it did not provide any new facts regarding risk. It
was submitted that the response was not substantively considered in arriving at
the H&C decision, and did not affect the outcome of the application (see Nazim
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 125). The respondent submitted that
the response did not provide any new facts regarding risk, nor challenge any
statements in the applicants’ rebuttal. It was submitted that the officer did
not commit a reviewable error in failing to disclose it.
Analysis and Decision
Standard of Review
[30]
The
standard of review applicable to decisions made with respect to applications
for permanent residence on H&C grounds is reasonableness (see Baker
above). Breaches of procedural fairness are subject to review on the standard
of correctness.
[31]
I
propose to first deal with Issue 2.
[32]
Issue
2
Did the officer breach
procedural fairness by not disclosing post-application evidence?
The officer received a response to
the applicants’ rebuttal of the risk opinion, but she did not provide a copy of
the response to the applicants. I am satisfied that the officer did consider
the response as her decision states the following:
Items given my consideration include the
following:
. . .
- Risk opinion, rebuttal and response to
rebuttal
. . .
Case Summary
Date Event
. . .
11 Aug 2005 – response to PA’s rebuttal
made
(Emphasis
Added)
[33]
The
officer, in her affidavit, stated that “ . . . The response did not make any
difference to the ultimate decision and was not considered as part of the
substantive decision.”
[34]
I
agree with the respondent that affidavit evidence may be submitted on judicial
review when the evidence deals with procedural fairness issues. However, I am
of the view that the affidavit evidence in this case serves to justify the
officer’s decision and is not admissible.
[35]
The
response should have been disclosed to the applicants as the officer stated in
her decision that the response was considered in rendering her decision.
[36]
In
my opinion, the failure to provide a copy of the response to the applicants is
a breach of the duty of procedural fairness. On this basis, the application for
judicial review is allowed and the matter is referred to a different officer
for redetermination.
[37]
Because
of my finding on this issue, I need not deal with the remaining issues.
[38]
The
applicants submitted seven proposed serious questions of general importance for
my consideration for certification. I am not prepared to certify any of the
questions as the resolution of this case is specific to the facts of this case.
JUDGMENT
[39]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The
relevant statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27:
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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 shall be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
25.(1) The
Minister shall, upon request of a foreign national who is inadmissible or who
does not meet the requirements of this Act, and may, on the Minister’s own
initiative, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
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11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
25.(1) Le ministre doit, sur
demande d’un étranger interdit de territoire ou qui ne se conforme pas à la
présente loi, et peut, de sa propre initiative, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
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