Docket:
IMM-9694-12
Citation: 2013 FC 1127
Ottawa, Ontario, November
6, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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EHIZUELEN EMMANUEL UMANE
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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]
Pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27, the applicant requested
permanent resident status on humanitarian and compassionate [H&C] grounds.
He was refused. He now challenges that decision by bringing this application
for judicial review.
[2]
The applicant seeks to have the negative H&C
decision set aside. In his application for leave and for judicial review, he
further asked that the Court do one of three things:
1. grant
the exemptions directly;
2. refer
the matter to an appropriate authority but direct that authority to grant the
exemptions; or
3. refer
the matter to an appropriate authority for redetermination.
[3]
In his oral submissions, he argued only for the
third, but also asked for a direction that an earlier spousal sponsorship
decision be ignored.
Background
[4]
The applicant is a citizen of Nigeria. He claims that he fled the country on October 20, 2001 because he was being persecuted for
his family’s religious and political beliefs. He spent some time in other
countries before arriving in Canada on September 28, 2008 and he sought refugee
status at that time. His refugee claim was rejected on October 4, 2011.
[5]
While that claim was still underway, however,
the applicant also filed two applications for permanent residence: one under
the spouse or common-law partner in Canada class (subsection 12(1) of the Act
and section 124 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations]) and the other for H&C considerations. The
main documents appear to have been signed on September 14, 2009, though some
were signed later. They were received by Citizenship and Immigration Canada in
October 2009.
[6]
On September 1, 2010, an immigration officer
sent a letter to the applicant which appeared to reject the spousal sponsorship
claim but continue it as an H&C considerations application. Following
receipt of that letter, Mr. Umane applied for judicial review. Pursuant to Rule
9 of the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22, the Registry requested disclosure of the reasons from Citizenship
and Immigration Canada [CIC]. CIC responded that “… no written decision or
reasons exist in connection with the above-noted application.”
[7]
As it turns out, the officer had actually
entered reasons into the Field Operations Support System [FOSS]. There are also
notes of the interview. All of these notes are dated or signed September 1,
2010.
[8]
However, those notes were never produced and the
judicial review was apparently discontinued on January 28, 2011. In his
affidavit, the applicant said that he did this because the lawyer representing
the respondent at the time contacted the applicant’s counsel and told him the
application was premature since the “… application for permanent residence had
not been rejected, but was still pending.”
[9]
On May 8, 2012, the applicant submitted
additional materials in support of his H&C application.
[10]
As well, the applicant says that he filed a
fresh application for permanent residence under the spouse or common-law
partner in Canada class on June 25, 2012.
Decision
[11]
In a decision dated August 8, 2012, a senior immigration
officer [the officer] rejected the H&C application. Although the applicant
did not initially say from which provisions he sought exemption (and now
identifies only section 11 in his application for leave and for judicial review),
the officer approached it broadly and said it was for “an exemption from the
in-Canada selection criteria and the requirement to not be inadmissible in Canada.”
[12]
The officer began by describing the events the
applicant alleges occurred between leaving Nigeria and entering Canada and she observed that he had entered this country using a fraudulent passport. She
went on to say that many of the applicant’s claims about persecution and
personal hardship in Nigeria had already been rejected by the Refugee
Protection Division on the basis that Mr. Umane was not credible. She reviewed
the conditions in Nigeria, but concluded that the applicant had failed to prove
that they would have “a direct, personal negative impact on him, including his
profile as a Christian, or that avenues of recourse or redress would not be
available to him in Nigeria.”
[13]
She then assessed the degree of establishment in
Canada. The officer admitted that some establishment could be expected since
he had lived in Canada for four years, but held that “it cannot be argued that
any resulting hardship was not anticipated by the Act or beyond the applicant’s
control.” In reaching this conclusion, she acknowledged that he had provided a
signed job offer, but she questioned the legitimacy of this document since the
position offered did not match the position the applicant claimed to have. She
also noted that his finances seemed to be managed satisfactorily, but that he
had not proven that he owned any assets in Canada.
[14]
Further, the officer found that the applicant
had no family members in Canada except for his spouse and she disregarded the
impact on the spouse because of the “… previous finding that the applicant’s
marriage was done for immigration purposes.” Relying on the same finding, along
with his conviction for marriage fraud in the United States, she also stated that
“the applicant has demonstrated a disregard for the law in several countries.”
[15]
Finally, the officer acknowledged that the
applicant had a seven year old son who was living in the United States. However, she found that returning the applicant to Nigeria would not affect that
child’s best interests since the applicant is banned from entering the United States in any event.
[16]
As a result, the officer rejected the
application.
[17]
The officer also listed the sources upon which
she relied. Among them was the “[r]equest for Exemption from Permanent Resident
Visa Requirement application received 13 October 2009, including submissions
and supporting documentary evidence and updated information.” However, she stated
in her affidavit that she did not consider the May 2012 submissions since they
were not in the file at the time.
Issues
[18]
The applicant alleged numerous grounds of error
in his application for leave and for judicial review. To paraphrase, he
criticized the decision-maker for: (1) following an irregular process; (2)
improperly fettering her discretion; (3) unreasonably weighing the evidence by
considering irrelevant evidence, failing to consider relevant evidence, failing
to understand the evidence and making erroneous findings of fact; (4) breaching
the applicant’s Charter rights; (5) breaching provisions of the Act and
the Regulations; (6) failing to give an adequate opportunity to the applicant
to respond to her concerns and doubts; and (7) relying on extrinsic evidence
without giving notice to the applicant. He also alleged that the provisions of the
Act governing the application were unconstitutional. Many of these issues were
narrowed or abandoned in his submissions on the leave application.
[19]
Further, the respondent now admits that the
failure to consider the May 2012 submissions was a breach of procedural
fairness. In light of that, most of the issues listed by the applicant were not
argued.
[20]
One disagreement remains: what is to be done
with the notes made in relation to the spousal sponsorship decision? The
applicant asks that the decision be set aside and the notes ignored in any
redetermination of the H&C application. The respondent agrees that the
sponsorship decision was problematic, but argues that the remedy should be to
set aside the sponsorship decision, not discard the notes.
[21]
Thus, the remaining issues are:
1. What
is the standard of review?
2. Was
there a breach of procedural fairness?
3. What
should be done about the spousal sponsorship notes?
Analysis and
Decision
[22]
Issue 1
What
is the standard of review?
The
parties did not provide any submissions on standard of review, but both of the
remaining issues are questions of procedural fairness. As Mr. Justice Binnie
said at paragraph 43 of Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339, “procedural issues (subject to competent legislative
override) are to be determined by a court on the basis of a correctness
standard of review.” The officer is not entitled to any deference.
[23]
Issue 2
Was
there a breach of procedural fairness?
The
applicant submitted additional materials which were received on May 8, 2012.
They are in the record and their receipt is also recorded in the FOSS notes
attached to the officer’s affidavit. For some reason, perhaps through administrative
error, they were not in the file when the officer decided the matter. As such,
submissions properly before the decision-maker were ignored.
[24]
The applicant argued that this was a breach of
procedural fairness. The respondent agreed.
[25]
Neither party advanced any submissions on the
level of procedural fairness required by the factors in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. However, Baker
itself dealt with an H&C grounds application. Madam Justice L’Heureux-Dubé
said, at paragraph 32, that the procedural fairness required was more than
minimal and that:
…
the circumstances require a full and fair consideration of the issues, and the
claimant and others whose important interests are affected by the decision in a
fundamental way must have a meaningful opportunity to present the various types
of evidence relevant to their case and have it fully and fairly considered.
[26]
Here, although the applicant’s May 2012
submissions were properly received, they were not “fully and fairly
considered.” They were not considered at all. Therefore, I agree that there was
a breach of procedural fairness.
[27]
As well, the breach could have potentially
affected the outcome of the decision. To take just one example, the submissions
included evidence that Ms. Pedro, the applicant’s spouse, was pregnant. If it
is accepted that the applicant is the father, this evidence potentially impacts
the marriage legitimacy issue and the best interests of the children factor,
both areas on which the officer found against the applicant.
[28]
As a result of this breach of procedural
fairness, the H&C decision must be set aside and referred to a different
officer for redetermination.
[29]
Issue 3
What
should be done about the spousal sponsorship notes?
Procedurally,
this case is somewhat strange and to understand this issue, it is necessary to
set out the background in further detail. As mentioned earlier, the applicant
made two applications for permanent residence at the same time: one under the
spouse or common-law partner in Canada class and one for H&C
considerations.
[30]
The spousal sponsorship application was
considered first and on September 1, 2010, the officer sent a letter to the
applicant which said that:
On October 5, 2009
you requested an exemption, based on humanitarian and compassionate
consideration, in relation to the following requirement:
•
to be the spouse or common-law partner of a
sponsor and cohabit with that sponsor in Canada [R124(a)];
As a result, you do
not meet the eligibility requirements for membership in the spouse or
common-law partner in Canada class. Since you have requested humanitarian and
compassionate consideration, your application will be processed as an
application for permanent residence from within Canada based on humanitarian
and compassionate grounds.
[31]
That letter is confusing. The applicant was not
asking for an exemption from the requirement of having a spouse; his primary
claim was that he was married to Ms. Pedro and therefore had a spouse in Canada. The letter does not address that.
[32]
However, the officer’s FOSS notes reveal that
the officer considered that question and concluded that the applicant did not
have a genuine spousal relationship with Ms. Pedro. In particular, he noted two
things:
1. When
Ms. Pedro filed a police report regarding a missing passport, she could not
provide the date of birth or the correct spelling of the applicant’s name and
she listed someone else as her nearest relative; and
2. When
officers conducted a bed check while Ms. Pedro was out, no one there knew the
applicant and Ms. Pedro’s roommate said that he did not even know Ms. Pedro was
married. The notes record the excuses the applicant and Ms. Pedro gave for
these situations, but the officer rejected them and concluded that:
I am not satisfied that
the sponsor and applicant are in a genuine spousal relationship, and not one
entered into primarily for the purpose of acquiring any status or privilege
under the Act.
[33]
He then reviewed section 4 and subsection 124(a)
of the Regulations and said that: “[s]ince the applicant is not considered a
spouse within the meaning of Section 4 of the Regulations, he does not meet the
requirements of the class.”
[34]
However, neither the applicant nor this Court
received those notes, even when the applicant applied for judicial review and
the Registry asked for reasons. Before now, the only relevant documents that
the applicant received were that letter, the Rule 9 letter saying there were no
reasons and a representation from the respondent that the matter was still pending.
[35]
Thus, to set out the procedural history of this
case concisely, a review of the record reveals the following:
1. The
applicant originally filed a spousal application and an H&C application.
2. The
applicant was sent a confusing letter about his spousal application on
September 1, 2010.
3. After
receiving this letter, the applicant filed a judicial review application of
what he believed to be a decision.
4. The
applicant, relying on the respondent’s representation that no decision was made,
discontinued his application for judicial review.
5. The
applicant’s H&C application was denied.
6. The
officer who denied the applicant’s H&C application had the FOSS notes from
the initial spousal application. The applicant had not received these FOSS
notes which were negative for the applicant.
7. The
applicant filed an application for leave and judicial review of the negative
H&C decision which is the subject matter of this judicial review.
8. The
applicant has filed a second spousal application.
[36]
It is particularly important to remember that
the applicant filed two separate applications, a spousal application and an
H&C application. The FOSS notes were made in relation to the spousal
application for which no application for leave and for judicial review is
pending as it was withdrawn by the applicant.
[37]
Thus, I do not agree with the respondent that
the spousal sponsorship decision was “converted” to an H&C application. I
am not aware of any authority in the Act or its Regulations which permits such
a conversion. Counsel for the respondent did say that it was a recommended
practice in a manual used by immigration officers, but did not provide a copy
of that manual or indicate where. Of course, subsection 25.1(1) of the Act does
allow the Minister to initiate a consideration of H&C grounds. However,
that does not mean that any earlier process is “converted”, in the sense that
it simply becomes a preliminary step in the H&C application process.
[38]
Consequently, this Court cannot, on this
judicial review, deal with the spousal application.
[39]
As such, the problem is not whether the spousal
sponsorship decision should be set aside; it is whether it was a breach of
procedural fairness to rely on the undisclosed reasons for that decision when
determining the H&C application. That is potentially moot, since I have
already found that the H&C decision should be set aside. However, pursuant
to paragraph 18.1(3)(b) of the Federal Courts Act, RSC 1985, c
F-7, this Court has the power to refer a matter back to a tribunal “for determination in accordance with such directions as it considers to
be appropriate.” Ultimately, the applicant does seek a direction that the notes
be ignored and so this is a live controversy that is properly within this
Court’s jurisdiction. It requires an answer.
[40]
I agree with the applicant that the officer’s
reliance on the conclusions of the first officer in the FOSS notes is
problematic. The applicant had no way of knowing those notes existed and had no
opportunity to make any submissions with respect to them at the H&C stage.
[41]
On the other hand, that same concern will not be
present in a redetermination, since now the applicant does have access to the
notes.
[42]
Still, that is not enough to cure the unfairness to
the applicant. By the respondent’s course of action, the applicant was denied
his chance to have the spousal sponsorship decision judicially reviewed.
Therefore, relying on that decision is to the applicant’s disadvantage and is
fundamentally unfair and that unfairness would exist as long as the notes
remain a factor. I will therefore direct the officer who will hear the H&C
matter to ignore the FOSS notes.
[43]
The applicant also mentioned his new application
for spousal sponsorship and suggested that the direction should apply also to
the officer who hears that matter. Although the above logic would suggest the
same result, that matter is not yet before the Court and I could not find any
provision that gives this Court the power to preemptively make such an order.
As such, the direction can only apply to the H&C redetermination.
[44]
The application for judicial review is therefore
allowed and the matter is referred to a different officer for redetermination.
The officer shall not make use of the FOSS notes in reaching a decision.
[45]
Neither party wished to propose a serious
question of general importance for my consideration for certification.
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