Date: 20081209
Docket: IMM-795-08
Citation: 2008 FC 1349
Toronto, Ontario, December 9, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
SUWALEE IAMKHONG
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application deals mainly with the reasonableness and adequacy of reasons for the
preparation of an inadmissibility report, and its subsequent referral to the
Immigration Division, pursuant to subsections 44(1) and 44(2) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27. For the reasons
that follow, I am of the view that the application must be dismissed.
Background
[2]
In
1969 the applicant was born in a small rural community in Thailand. In 1994,
with a grade four education, she travelled to Hong Kong, to work as
an exotic dancer. She was sexually active with clients, and soon after
arriving in Hong Kong she had her blood tested; she was told that she was HIV-positive.
Two weeks after the blood test she received a work visa to enter Canada to work
as an exotic dancer, which she did from her arrival in Canada in 1995 until her
arrest in 2004 on the criminal charges that brought her to the attention of the
immigration authorities.
[3]
Four
months after her arrival and as part of the visa renewal process, the applicant
had a medical examination, which included a blood test. The test results were acceptable
and the visa was renewed. The visa continued to be renewed periodically for
some considerable time. The applicant maintains that she mistakenly thought
that the blood test she took for her visa renewal included an HIV test.
Because the visa was renewed she claims that she thought, again mistakenly,
that the HIV- positive result in Hong Kong was an error.
[4]
In
1997, the applicant married a Canadian citizen. In February of 2004, the
applicant became ill and was diagnosed as HIV-positive. Her husband was
advised of her status and a blood test disclosed that he too was HIV-positive.
The applicant and her husband have separated. Criminal charges were laid
against the applicant as a consequence of her having infected her husband. On January
16, 2007, the applicant was convicted of criminal negligence causing bodily
harm and aggravated assault, under sections 221 and 268 of the Criminal Code.
On August 16, 2007, the applicant was sentenced to three years, less one year of
credit for time served in pre-trial detention, on each count, to be served concurrently.
[5]
Persons
in Canada who are not citizens may be removed from Canada if they have
been convicted of serious criminality, as the applicant has. On November 30,
2007, the applicant was interviewed by an immigration officer at the detention
center where she is serving her sentence. The applicant was accompanied by a
representative of the Asian Community AIDS Services. At the interview the officer
explained to the applicant the purpose of the interview, which was being held
in light of section 44(1) of the Act, which provides as follows:
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44. (1) An officer who is of the opinion that a permanent
resident or a foreign national who is in Canada
is inadmissible may prepare a report setting out the relevant facts, which
report shall be transmitted to the Minister.
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44.
(1) S’il
estime que le résident permanent ou l’étranger qui se trouve au Canada est
interdit de territoire, l’agent peut établir un rapport circonstancié, qu’il
transmet au ministre.
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[6]
The
officer provided an affidavit in this proceeding, in which she states that she
explained to the applicant that due to the length of her sentence, she might
lose the right to appeal if a removal order were to be issued against her.
Section 64 of the Act provides that no appeal to the Immigration Appeal
Division lies where a person has been found to be inadmissible on grounds of
serious criminality, which is defined for these purposes to be a crime that was
punished by a term of imprisonment of at least two years. In the applicant’s
circumstances she was to serve a sentence of three years and thus has no appeal
rights to the IAD.
[7]
The
officer attests that the interview focused on the applicant’s circumstances,
including her health, her need for medical care, her immigration history and length
of time in Canada, her criminal
history, education, work experience, her family in Canada and in Thailand, the details
of her sentencing, her future plans, the degree of her establishment in Canada and her
financial means. The handwritten notes in the certified tribunal record confirm
that these were all areas canvassed by the officer. In addition, the applicant
was told that she could send further submissions for consideration.
[8]
On
December 13, 2007, the officer received 20 pages of written submissions and
supporting documents from the applicant’s counsel. These submissions are entitled
“Request for Discretionary Relief from the A40(1) Inadmissibility Report".
In these submissions, applicant's counsel provided further details concerning
the applicant including her status in Canada, the absence of previous
criminality, the fact of her cooperating and being forthcoming with information,
that she had never made misrepresentations to CIC or to CBSA, her 12 years of
residency in Canada, her close relationship with her sister in Canada and their
joint catering business, her involvement in the Thai HIV AIDS community, the
circumstances surrounding her HIV testing as outlined above, her remorse for having
caused her husband to contract HIV, the hardship she would face if she were to
be sent back to Thailand, including limited availability of medication and her inability
to afford medication, and, as a consequence, her shortened life expectancy.
[9]
The
officer attests that on December 17, 2007, she decided to prepare the subsection
44(1) report, and that the report was prepared on January 7, 2008 (although it
bears the former date of December 17, 2007). In it the officer summarizes
the information that was obtained during the oral interview and notes that
written submissions were received from the applicant’s counsel and that these
were considered. The officer’s conclusion is as follows:
The subject showed great
remorse for her actions as well as a great desire to remain in Canada. However, the writer cannot
disregard the severity of the criminal conviction, the sentence imposed and
that the courts did not find the subject’s claim of ignorance of her disease to
be credible. Also that the subject did not disclose her medical history to CBSA
at any time, including at her original entry or on the numerous applications to
extend her status that she submitted.
Taking into account all
information available, including submissions provided by the subject’s lawyer
on her behalf, humanitarian and compassionate factors and being aware of it due
to the length of sentence received the subject may not have the right to appeal
a removal order if issued, it is the recommendation of the writer that the
subject be referred to a disability hearing. Further, it is the recommendation
of the writer that a warrant be issued and subject placed in detention awaiting
admissibility hearing.
[10] The
applicant, in her submissions, makes much of the fact that the narrative report
which the officer says was prepared on January 7, 2008, makes reference to the
fact that the applicant had appealed her criminal conviction. As the applicant
notes, her counsel forwarded a copy of the notice of appeal of the criminal
conviction on January 8, 2008 - one day after the narrative report was
prepared. It is submitted that this discrepancy proves that the officer was
either influenced by her manager when making the subsection 44(1) determination
or that the manager actually made the decision. I am not convinced that this
discrepancy, if indeed it is one, proves anything of the sort.
[11] The certified
tribunal record includes a letter from Eva Sin of the Asian Community AIDS
Services dated November 28, 2007. This letter was submitted by the applicant
to the officer on December 13, 2007, as a part of her submissions supporting
her request that an inadmissibility report not be prepared. Ms. Sin states in
her letter of support that the criminal conviction is under appeal. Thus, the officer
would have been aware of the appeal prior to receipt of the letter on January
8, 2008. Further, the cover letter of January 8, 2008, from applicant’s
counsel makes it clear that the notice of appeal is being forwarded to the officer
“as requested”. As such it is disingenuous for the applicant to now assert
that the officer could not have known of the appeal prior to January 8, 2008.
Lastly, the officer in the narrative report writes that the notice of appeal
was filed October 19, 2007, whereas the notice forwarded to her by the
applicant’s counsel clearly indicates in the notice and cover letter that it
was filed October 20, 2007. It seems very odd that the officer would have
gotten the date of filing wrong if she had, in fact, relied on the information
contained in the January 8, 2008 letter. Accordingly, in my view, the
applicant has failed to establish that the decision was not made and prepared
on the dates stated by the officer.
[12] On January
14, 2008, the Minister's delegate signed the narrative report with the
following notation:
I have reviewed all the
information provided. Have taken into consideration the H&C factors as
well as the fact that subject will not have any appeal rights. I feel that an
admissibility hearing is appropriate in this case. Also a warrant is
appropriate as well.
This constituted the subsection 44(2)
decision. Subsection 44(2) of the Act reads as follows:
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44.
(2) If
the Minister is of the opinion that the report is well-founded, the Minister
may refer the report to the Immigration Division for an admissibility
hearing, except in the case of a permanent resident who is inadmissible
solely on the grounds that they have failed to comply with the residency
obligation under section 28 and except, in the circumstances prescribed by
the regulations, in the case of a foreign national. In those cases, the
Minister may make a removal order.
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44. (2) S’il estime le rapport bien fondé, le
ministre peut déférer l’affaire à la Section de l’immigration pour enquête,
sauf s’il s’agit d’un résident permanent interdit de territoire pour le seul
motif qu’il n’a pas respecté l’obligation de résidence ou, dans les
circonstances visées par les règlements, d’un étranger; il peut alors prendre
une mesure de renvoi.
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[13] The officer
met again with the applicant on February 4, 2008. The applicant provided an
affidavit in which she attests that she was told that the officer’s manager had
made the decision to make an admissibility report and that “she did not tell me
what the reasons were for this decision". For her part, the officer
attests that at the meeting on February 4, 2008, she did explain to the
applicant that she wrote the report because she was of the opinion that the
applicant was inadmissible pursuant to subsection 36(1)(a) of the Act due to
having been convicted and sentenced for aggravated assault and criminal
negligence causing bodily harm. She attests that she advised the applicant that
her manager had referred the applicant to an admissibility hearing and that she
gave the applicant a copy of the narrative report that she had written. Although
the applicant says that she was not told why the report was written and the referral
to an admissibility hearing made, it is of note that the applicant has not
challenged, either in her affidavit or as a ground of review in this proceeding,
that she was in fact provided with a copy of the narrative report. That
narrative report does indicate the reasons why these steps were taken,
although, so the applicant alleges, not sufficiently.
[14] An
application was filed February 19, 2008, seeking leave to commence an
application for “judicial review of the decision of enforcement officer, Sarah
Blanchett and her supervisor, Klaudios Mustakas, which was communicated to the
applicant on February 4, refusing her request for relief from the s. 44(1) Inadmissibility
Report…".
[15] The respondent
was asked, pursuant to the Federal Courts Immigration and Refugee Protection
Rules, for the reasons for the decision subject to the application. Three
pages were provided in response to that request, a two-page Report Under Section
44(1) of the Act dated January 7, 2008, together with one-page of notes of the
meeting of the officer and the applicant on February 4, 2008.
[16] Subsequent to
the granting of leave in this matter, Canadian Border Services Agency provided the
Court and parties with the certified tribunal record under cover of letter
dated September 17, 2008. The certified tribunal record comprises some 117
pages, including the narrative report of the officer discussed above.
[17] In addition
to the applicant’s own affidavit, she also filed an affidavit of Eva Sin, a
support worker with the Asian Community AIDS Services, who was present with the
applicant during her initial interview on November 30, 2007. That affidavit
contains a paragraph, based on information and belief, that sets out a conversation
between counsel for the applicant and the Minister's delegate on February 19, 2008,
together with applicant’s counsel’s note of her conversation.
[18] Ms. Sin’s
affidavit also includes her notes of the November 30th interview
with the officer. To the extent that the applicant has suggested otherwise,
these notes, in my view, support the officer’s assertion that she explained
that the process under section 44 involved two-steps that firstly involved her
and that secondly involved her manager, the Minister’s delegate, who would make
the decision whether to refer the applicant to an inadmissibility hearing.
Issues
[19] The applicant
proposes the following as issues to be determined:
(a) Whether
an officer has the discretion to decide whether or not to make a report under
subsection 44(1) and whether the Minister’s delegate has the discretion to
refer the report under subsection 44(2) of the Act;
(b) Whether
the officer and Minister’s delegate breached their duty of fairness to the
applicant by failing to give adequate reasons for their decisions;
(c)
Whether
the officer and Minister’s delegate fettered their discretion in not taking
into consideration the particular circumstances of the applicant when making
the decisions under subsections 44(1) and (2); and
(d)
Whether
the decisions of the officer and Minister’s delegate were unreasonable.
Preliminary Matters
[20] The
respondent raised two preliminary matters. First, the respondent submits that
the application for judicial review is improper in that it concerns two
decisions, rather than a single decision. Rule 302 of the Federal Courts Rules
provides: “Unless the Court orders otherwise, an application for judicial
review shall be limited to a single order in respect of which relief is sought”.
In this case, the application for judicial review relates to two decisions - the
decision of the officer and the decision of the Minister's delegate. The respondent
submits that the applicant ought to have filed two applications for leave and
for judicial review challenging the two decisions in two separate proceedings
and, having failed to do so, the applicant is precluded from challenging the
decision reached by the Minister’s delegate under subsection 44(2) of the Act,
because she did not file a separate application for leave challenging that
distinct decision.
[21] The
respondent is quite correct in his interpretation of Rule 302 and the requirement
that each application for judicial review address only one decision or order. The
applicant has failed to comply with that Rule. In circumstances such as those
here, where there are two separate decisions made, each decision ought to be
subject to an application for leave and for judicial review. In the interest
of saving judicial resources, the Court typically schedules both applications,
provided leave is granted, to be heard together: see for example Leong v.
Canada (Solicitor General), [2004] F.C.J. No. 1369; Hernandez v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 533; Hernandez
v. Canada (Minister of Public Safety and Emergency Preparedness), [2007]
F.C.J. No. 965; and Richter v. Canada (Minister of Citizenship and
Immigration), [2008] F.C.J.. No. 1033.
[22] In the unique
circumstances of this case, I am prepared to issue an order that the decisions
of each of the officer and the Minister’s delegate under subsections 44(1) and
(2), respectively, be dealt with together in this single judicial review
application. This should not be interpreted as a precedent to suggest that it
is appropriate to file single applications when dealing with the two decisions
referenced in section 44 of the Act – it is not. In this case, however, the
objection was raised late and all of the materials required were before the
Court, including full submissions on both decisions.
[23] Secondly, the
respondent objects to the evidence tendered by the applicant relating to her counsel’s
conversation with the Minister's delegate. The respondent submits that the
content of this conversation is not a fact within the personal knowledge of the
affiant as is required by Rule 81, as she was not a party to the conversation.
The respondent takes the position that the evidence that the applicant wishes
to tender does not fall within any of the exceptional circumstances when
evidence on information and belief may be accepted.
[24] The applicant
submitted that the evidence is a business record of the affiant, Eva Sin, and
thus an exception to the hearsay rule. There is no doubt that counsel’s note
of her phone conversation is her own business record, but merely providing it
to an affiant to be included in her affidavit does not then make it that
person’s business record. This note is not a document that the affiant or the
Thai Community AIDS Services, with which she is engaged, prepared in
the usual and ordinary course of its business. It is not a business record
admissible in this proceeding in the manner in which it was tendered. Had the
applicant wished to ask the Court to consider this document, and the
conversation, then it ought to have been tendered through an affidavit from her
counsel although that would have prevented counsel from appearing at this
hearing: see Rule 82. For these reasons, the respondent’s objection to this
evidence is upheld. In any event, the evidence of the conversation that the
applicant wished to tender would not, in my view, have affected the outcome of
this matter.
The Decisions and Their
Reasons
[25] As
noted, the documents provided on April 7, 2008, pursuant to Rule 9 of the Federal
Courts Immigration and Refugee Protection Rules did not contain the
narrative report that was included with the certified tribunal record. The
applicant submitted that the narrative report ought not to be accepted as part
of the record or as the reasons for the decisions under review as they were not
provided pursuant to Rule 9 and because the applicant was prejudiced as her
arguments were based on the materials submitted pursuant to Rule 9. I reject
both submissions.
[26] I agree with
the respondent that the failure to include the narrative report in the Rule 9
disclosure was likely a clerical error and that the applicant was not prejudiced
as it was produced in the certified tribunal record in sufficient time for both
parties to make detailed submissions, in writing and orally, on the reasons it
discloses. A similar situation occurred in Abdeli v. Canada (Minister of
Public Safety and Emergency Preparedness), [2006] F.C.J. No.
1322. As was noted by Justice Kelen, although the narrative report was not
provided in the initial response under Rule 9, but only later as a part of the
certified tribunal record, it did constitute the “reasons” for the decision and
was properly before the Court.
Discretion In Section 44
Decisions
[27] The
applicant, in her submissions on the leave application, stated “this case
brings into question the boundaries of the discretionary power of an officer to
make a decision as to whether or not to file a 44(1) Inadmissibility Report
against a permanent resident, particularly one who is barred from making an
appeal to the Immigration Appeal Division of her removal”.
[28] As
has been noted, at the time the applicant wrote those submissions, she did not
have the benefit of the officer’s narrative report, or the reasons of the
Minister’s delegate. Based on the brief document that she did have, it
appeared that neither the officer nor the Minister’s delegate had considered anything
other than the fact of conviction and the sentence imposed. On those facts,
the applicant was correct as to the issue the application appeared to raise.
[29] There
is some difference of opinion in this Court’s jurisprudence as to whether an
officer has discretion under subsection 44(1) when making an admissibility
report, and if so the extent of that discretion: see Hernandez v.
Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 533;
Hernandez v. Canada (Minister of Public Safety and Emergency Preparedness),
[2007] F.C.J. No. 965; Awed v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J.. No. 645; Spencer v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1269; Richter v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 1033. Accordingly, on
the right facts, these questions would require examination. However, in this
case it is now clear from the record that both the officer and the Minister’s delegate
did consider that they had discretion when making the decisions required of
them under section 44. Further, the record also indicates that each did
consider a variety of factors when determining whether or not to exercise their
discretion. Even if these persons exceeded their jurisdiction in considering
that they had discretion, both considered that they had discretion. Thus, the
issue, as framed by the applicant, does not arise on the facts of this case.
[30] In my view,
the only issues requiring the Court’s examination on this application are the
following:
(a)
Whether
the officer or the Minister’s delegate failed to provide adequate reasons for
their decisions; and
(b)
Whether
either of their decisions is unreasonable.
Analysis
Adequacy of
Reasons
[31] Decisions
made under section 44 of the Act have been held to be administrative decisions
attracting a lower duty of fairness. Justice Snider in Hernandez v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 533, described this as
a “relaxed” duty of fairness. While some have held that no reasons are
required for decisions made under this provision (see for example, Lee v.
Canada (Minister of Citizenship and Immigration), 2006 FC 158, at para.
39), I am of the view that reasons are required, given the importance of the
decision to the person being considered for removal. However, that is not to
say that the reasons that are given must be of the detail required in quasi-judicial
or judicial proceedings.
[32] In
my view, the following comments of the Supreme Court in Lake v. Canada
(Minister of Justice), [2008] 1 S.C.R. 761, an
extradition case, are applicable to a section 44 decision. The reasons need
not be comprehensive nor analyze every factor, the test is whether they allow
the person affected to understand why the decision was made and allow the
reviewing court to assess the validity of the decision.
As for the adequacy of the Minister's
reasons, while I agree that the Minister has a duty to provide reasons for his decision;
those reasons need not be comprehensive. The purpose of providing reasons is
twofold: to allow the individual to understand why the decision was made; and
to allow the reviewing court to assess the validity of the decision. The
Minister's reasons must make it clear that he considered the individual's
submissions against extradition and must provide some basis for understanding
why those submissions were rejected. Though the Minister's Cotroni
analysis was brief in the instant case, it was in my view sufficient. The
Minister is not required to provide a detailed analysis for every factor. An
explanation based on what the Minister considers the most persuasive factors
will be sufficient for a reviewing court to determine whether his conclusion
was reasonable.
[33] The
officer’s reasons indicate that she did consider the evidence presented concerning
what the applicant described as H&C factors. While they supported the applicant’s
request that a subsection 44(1) report not be prepared, the officer reasoned
that she could not disregard the severity of the crimes for which the applicant
was convicted, the sentence imposed, the fact that the criminal court had not
accepted the applicant’s assertion that she was ignorant of her HIV-status, and
lastly the fact that the applicant had never disclosed her status to the
immigration authorities, either on initial entry or when subsequently renewing
her work visa. In short, the officer found that these were the more persuasive
factors and they resulted in her preparing the subsection 44(1) report.
[34] In
my view, the applicant is able to read the narrative report and conclude, as I
have, that the reasons for the subsection 44(1) report, despite the factors
that weighed in her favour, were those outlined in the preceding paragraph.
While someone else weighing the factors presented may have arrived at a
different conclusion, the reasons for the officer’s decision, in my view, are
adequate.
[35] Similarly,
in my view, the reasons of the Minister’s delegate also meet the Lake
standard as the Minister’s delegate adopts and relies upon those of the
officer.
Reasonableness of the
Decisions
[36] We are to be
guided by the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9, and in particular paragraph 49:
Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead,
they may give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of articulating
the reasons and to outcomes. 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.
[37] Decisions
under section 44 of the Act are decisions that are unlikely, on the facts, to
lend themselves to only one possible conclusion. On the facts of this case
that is certainly true. I am unable to say that either the officer’s decision
or the Minister’s delegate’s decision falls outside the range of possible,
acceptable outcomes. Despite the factors in the applicant’s favour, those
emphasized by the officer are appropriate factors to consider and they are
factors that, in my view, support the preparation and referral of an
inadmissibility report.
[38] Accordingly,
this application is dismissed.
[39] The applicant
submitted two questions for certification.
(a)
What
is the scope of: (i) the officer’s discretion under subsection 44(1) of the Immigration
and Refugee Protection Act in making a decision as to whether or not to
prepare a report to the Minister or the Minister’s delegate; and (ii) the discretion
of the Minister’s delegate, under subsection 44(2) of the Immigration and
Refugee Protection Act, in making a decision as to whether to make a
referral to the Immigration Division for an inquiry?
(b)
What
is the duty of fairness owed in respect of: (i) the officer’s decision on
whether to prepare a report under subsection 44(1) of the Immigration and
Refugee Protection Act; and (ii) the decision of the Minister’s delegate as
to whether to refer such a report to the Immigration Division under subsection
44(2) of the Immigration and Refugee Protection Act?
[40] In order to
certify a question for appeal the question posed must be a serious question of
general importance which would be dispositive of an appeal.
[41] The first
question posed by the applicant could not be dispositive of an appeal as the
scope of discretion does not arise on the present facts. The duty of fairness
owed under section 44 of the Act has been considered numerous times by this
Court in the decisions referenced herein. There is general agreement as to the
duty owed. Further, the applicant has raised no duty that was not observed by
the respondent. Accordingly, this would not be dispositive of an appeal.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
Pursuant
to Rule 302, the decisions of the officer and the Minister’s delegate have both
been reviewed in this application for judicial review;
2.
This
application for judicial review is dismissed; and
3.
No
question is certified.
"Russel
W. Zinn"
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