Date: 20081205
Docket: IMM-5046-07
Citation: 2008 FC 1352
Ottawa, Ontario, this 5th
day of December 2008
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
ADEJUMOKE
ODUTOLA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUGDMENT
[1]
This
is an application for judicial review of the decision of visa officer Michel Verge,
dated October 2, 2007, refusing to issue a temporary resident visa to the
applicant.
[2]
The
applicant, Ms. Adejumoke Odutola, is a citizen of Nigeria. On
September 13, 2007 she applied for a temporary resident visa for herself and
her infant son at the Canadian Deputy High Commission in Lagos, Nigeria,
with the intention of visiting her brother, a lawyer in Ottawa. Her
application was refused on October 2, 2007.
[3]
The
applicant has four dependent children. The three oldest are the offspring of
her deceased ex-husband. The youngest, an infant, was born in July 2006, and is
the subject of a paternity suit by the applicant against the putative father.
[4]
The
applicant, who is well-travelled and has never been refused entry as a visitor
to any country, is concerned that the rejection of her application will pose
obstacles to future travel, both to Canada to visit her brother
and to other countries.
* * * * * * *
*
[5]
The
visa
officer determined that the applicant – or, more specifically, her infant son –
did not satisfy the requirements of subsections 20(1)(b) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) and 179(b)
of the Immigration and Refugee Regulations, SOR/2002-227 (the “Regulations”).
Because
the applicant refused to travel without her son, her application was also
denied.
[6]
The
decision is recorded on a standard-form template, wherein the officer indicates
that he was not satisfied that the applicant:
(1)
would return to her
country of origin if granted a temporary resident visa;
(2)
would leave Canada at the end of the temporary period if she were authorized
to stay, or
(3)
met the requirements
relating to family ties in Canada and Nigeria.
[7]
The
reasons for the decision are provided in the Computer Assisted Immigration
Processing System (CAIPS) notes. They make clear that the refusal to issue a visa to the applicant’s child
is based on the ongoing paternity suit mentioned above, which raised doubts in
the officer’s mind about the intentions of the applicant. In his view, because
she is “asking for money from the probable father”, she “could decide to leave
[the child] in Canada with her brother to force the father to pay”.
* * * * * * *
*
[8]
Subsection
20(1)(b) of the Act is relevant to the present proceeding:
|
20. (1)
Every foreign national, other than a foreign national referred to in section
19, who seeks to enter or remain in Canada must establish,
[…]
(b) to
become a temporary resident, that they hold the visa or other document
required under the regulations and will leave Canada by the end of the period
authorized for their stay.
|
20. (1) L’étranger non visé à
l’article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de
prouver :
[…]
b) pour devenir un résident
temporaire, qu’il détient les visa ou autres documents requis par règlement
et aura quitté le Canada à la fin de la période de séjour autorisée.
|
The following provision of the
Regulations is also pertinent:
|
179. An
officer shall issue a temporary resident visa to a foreign national if,
following an examination, it is established that the foreign national
[…]
(b) will leave Canada by the
end of the period authorized for their stay under Division 2;
|
179. L’agent délivre un visa de
résident temporaire à l’étranger si, à l’issue d’un contrôle, les éléments
suivants sont établis :
[…]
b) il quittera le Canada à la fin de la période de séjour autorisée
qui lui est applicable au titre de la section 2;
|
* * * * * * *
*
[9]
Decisions
of visa officers are highly discretionary, and are therefore subject to
deference. The Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190 at 222, establishes that “questions of fact, discretion and
policy as well as questions where the legal issues cannot be easily separated
from the factual issues generally attract a standard of reasonableness”. Reasonableness,
then, is the standard I apply here.
[10]
There
are two issues to assess when examining the reasons provided by the visa
officer. The first has to do with the adequacy of the reasons. I agree with the
respondent that the reasons in the officer’s CAIPS notes, though spare, meet
the benchmark established in the jurisprudence: they are “sufficiently clear,
precise and intelligible so that a claimant may know why his or her claim has
failed and be able to decide whether to seek leave for judicial review” (Mendoza
v. Minister of Citizenship and Immigration, 2004 FC 687, at paragraph 4).
[11]
The
problem arises in connection with the second issue, namely, the reasoning that
underlies the decision. The Supreme Court in Dunsmuir, supra (paragraph
47 at page 220), makes clear that administrative decision-makers “have a margin
of appreciation within the range of acceptable and rational solutions” (see
also Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at 270). The
reasoning in this case does not fall within this margin.
[12]
According
to the respondent Minister, “the visa officer made it clear that because of the
pending paternity suit the child’s legal situation was not clear”; this, it is
argued, “is a solid and valid reason for refusing a visitor’s visa”. I cannot
agree. Like the applicant, I can see no basis in the record or in logic for the
conjecture that the ongoing paternity suit would motivate the applicant, who has
full legal custody of her son, to leave her child in Canada as a means
of coercing money from a man who denies the child is his.
[13]
Moreover,
speculation about the supposed implications of the paternity suit overwhelmed
all of the other evidence, which indicates that the applicant is a regular
traveller with strong ties to Nigeria, including her three
remaining children, property and a career. The weight given to this improbable
scenario, over and above countervailing evidence, is plainly unreasonable,
which is sufficient to warrant the intervention of the Court.
[14]
There
is also, in my view, merit to the applicant’s argument that the visa officer’s
failure to put the above theory before the applicant at the time of her
interview constitutes a breach of natural justice. The applicant was
forthcoming with him about her involvement in the paternity suit, and had no
reason to believe, based on her interview, that it would provide the basis for
the rejection of her application. In his affidavit dated July 7, 2008, the visa
officer explains his reasoning as follows:
8. Normally,
a minor child travelling with only one parent requires permission from both
parents. This is to prevent child abduction, child trafficking, and other harm
to the child. In this case, paternity was not yet established. The nature of
the father’s rights or the identity of the father was not clear.
[15]
There
is nothing in the reasons to suggest that these concerns grounded the decision;
nor is there any reason to believe that the applicant had notice of the
officer’s concerns, given the subject matter of their discussion. I therefore
conclude that the officer’s failure to put his theory before the applicant
constituted a breach of procedural fairness. Although there is case law to
support this result, I note that the jurisprudence on this point is mixed (see
Ogunfowora v. Minister of Citizenship and Immigration, 2007 FC 471, at
paragraph 41; Yuan
v. Minister of Citizenship and Immigration, 2001 FCT
1356, 215 F.T.R. 66; Wang
v. Minister of Citizenship and Immigration, 2003 FCT 258, 229 F.T.R. 313; and Bonilla v. Minister of Citizenship and Immigration, 2007 FC 20).
* * * * * *
* *
[16]
For all the above reasons, the application for judicial review is
granted, the visa officer’s decision dated October 2, 2007 is set aside, and
the matter is sent back for re-determination by a different visa officer.
[17]
Both parties are seeking costs for different reasons.
[18]
Counsel for the applicant argues that his client is entitled to costs
because of the importance of the error made by the visa officer. It is my view
that no costs should be awarded to the applicant because there are no “special
reasons” within the meaning of section 22 of the Federal Courts Immigration
and Refugee Protection Rules, SOR/2002-232. Special reasons may be found if
one party has unnecessarily or unreasonably prolonged the proceedings, or where
one party has acted in a manner that may be characterized as unfair, oppressive,
improper or actuated by bad faith. The mere fact that the visa officer made a
mistake is insufficient to warrant the granting of costs to the applicant (see Johnson
v. Minister of Citizenship and Immigration, 2005 FC 1262, at paragraphs 26
and 27).
[19]
As for the respondent’s formal request for costs, it is hereby
dismissed, for the following reasons.
[20]
On
July 16, 2008, Michel Verge, the visa officer whose decision is the
subject-matter of the present review, was cross-examined by applicant’s counsel,
Mr. Eastman. Michel Verge speaks both French and English, but because he is
francophone, he asked to be cross-examined in French. The Court Administrator
therefore provided an interpreter for his cross-examination.
[21]
According
to Ms. Burgos, counsel for the respondent, there were significant problems with
the translation. She was therefore of the view that the English transcript of
the cross-examination did not accurately reflect the visa officer’s testimony
and sought to have a bilingual transcript, which she would have prepared based
on the tape, presented to the Court. Mr. Eastman agreed that she could have
access to the tape of the cross-examination, but opposed having a combined
French-English transcript of the cross-examination filed. Consequently, Ms.
Burgos brought a motion to have the dual language transcript filed.
[22]
There
is disagreement between Ms. Burgos, on the one hand, and Mr. Eastman and his
agent, Mr. Waldman, on the other, about who was responsible for the “undue
delay” in the bringing of the motion to have the combined French-English
transcript admitted into evidence.
[23]
Ms.
Burgos argues that Mr. Eastman improperly and without a reasonable basis
delayed the proceedings by obliging her unnecessarily to file a motion on July
24, 2008, which was heard over four different sittings of the Court in front of
three different Justices of the Court. His opposition to the filing of the
bilingual transcript, she claims, was without merit. Moreover, she says that he
contributed to the undue delay by failing to respond to her letters to him. Ms.
Burgos also maintains that Mr. Eastman’s behaviour was “contrary to the
bilingual nature of Canada”, in allegedly seeking repeatedly to deny the
language rights of the visa officer, and to prevent the officer’s evidence from
being viewed by the Court in the official language of his choice, namely
French. She
seeks an award of costs against Mr. Eastman personally, in the amount of $3000,
due to the 93.5 hours of additional work incurred in dealing with this motion.
[24]
Mr.
Eastman categorically denies these allegations. He argues that it is Ms. Burgos
who delayed the proceeding, by rejecting repeated offers by the applicant to
settle the matter without costs, and by persisting in bringing the motion after
he had already agreed that she could access the tape of the cross-examination.
Moreover, he claims that he had an arguable basis for opposing Ms. Burgos’
motion, and therefore had a duty to his client to advance the position.
[25]
A
reading of Mr. Eastman’s submissions on this issue, and Mr. Waldman’s
supporting affidavit, suggests that the there was no bad faith behind their
posture. Without
commenting on its merits, the record demonstrates that Mr. Eastman believed his
position was founded on existing jurisprudence. At paragraph 4 of his
submissions, he writes: “… I maintain that there were points on that motion
taken by the Applicant that were and remain fairly arguable”. Indeed, in his
affidavit, Mr. Waldman (at paragraph 4) explains that, in opposing the motion,
he took the position that the Minister had “failed to adduce
evidence to warrant challenging the reliability of the English transcript and
that was required before the Court could consider what other steps to take.”
[26]
It
is plain and undisputed that Mr. Eastman contested the filing of the
combination French-English transcript; the record attests, however, to his
agreement that the respondent have a copy of the cross-examination tape. In his
letter of August 7, 2008 to respondent’s counsel, Mr. Waldman wrote:
. . . I am writing further to our recent
conversation to confirm that I have instructions to not oppose your request
to obtain access to the tapes. As I indicated it would appear to me that
the appropriate course of action would be for you to retain an expert to determine
whether or not there was any deficiency in the translation. If your expert
concludes that there is a problem with the transcript that [sic] it
would be open to you to seek to have the transcript struck.
However, my client will not agree to
the filing of the bilingual transcript because we believe that this will be
highly prejudicial and that there is no basis in law for such a procedure. . .
.
(My
emphasis.)
[27]
In
addition, I am not persuaded that Ms. Burgos’ claim that Mr. Eastman’s conduct
demonstrates contempt for this country and this Court’s bilingual nature is
supported by the record. Mr. Eastman made no objection to the visa officer
being cross-examined in French. I see no reason to infer the attitude alleged
by Ms. Burgos from Mr. Eastman’s position with respect to the motion to
introduce the dual language transcript. As I understand it, he did not object
in principle to the submission of a bilingual document; rather, he insisted
that its submission be conditioned upon meeting an onus that he believed was
established by the jurisprudence.
[28]
As
to Mr. Eastman’s alleged silence in regard to the correspondence sent to him by
opposing counsel, I am satisfied that his letter of July 24, 2008 provides an
adequate explanation. Therein, Mr. Eastman writes:
I
informed counsel for the Respondent this afternoon that I have been preparing
materials for an urgent stay motion and a motion to leave in the Ontario
Superior Court all this week and consequently was not able to respond to her
correspondence.
[29]
Unlike
the respondent, I do not see this as “the clearest of cases of improper and
offensive conduct by a counsel that cannot be remedied in any manner but by
awarding costs to the Respondent against the Applicant’s counsel personally”. I
do not find that applicant’s counsel’s conduct warrants an order of costs
against him personally. In coming to this conclusion, I am guided by the words
of Chief Justice McLachlin in Young v. Young, [1993] 4 S.C.R. 3, cited
by applicant’s counsel in his submissions. At page 135, she writes:
The
Court of Appeal held that no order for costs should have been made against Mr.
How. There is no need to repeat that entirely satisfactory analysis. The
basic principle on which costs are awarded is as compensation for the successful
party, not in order to punish a barrister. Any member of the legal
profession might be subject to a compensatory order for costs if it is shown
that repetitive and irrelevant material, and excessive motions and
applications, characterized the proceedings in which they were involved, and
that the lawyer acted in bad faith in encouraging this abuse and delay. It is
clear that the courts possess jurisdiction to make such an award, often under
statute and, in any event, as part of their inherent jurisdiction to control
abuse of process and contempt of court. But the fault that might give rise to a
costs award against Mr. How does not characterize these proceedings, despite
their great length and acrimonious progress. Moreover, courts must be
extremely cautious in awarding costs personally against a lawyer, given the
duties upon a lawyer to guard confidentiality of instructions and to bring
forward with courage even unpopular causes. A lawyer should not be placed in a
situation where his or her fear of an adverse order of costs may conflict with
these fundamental duties of his or her calling.
(My
emphasis.)
[30]
Accordingly,
no costs are adjudicated in favour or against any of the parties in this
matter.
JUDGMENT
The application for judicial
review is granted. The decision of visa officer Michel Verge, dated
October 2, 2007 is set aside, and the matter is sent back for
re-determination by a different visa officer.
“Yvon Pinard”
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