Docket: IMM-6202-14
Citation: 2015 FC 1040
Toronto,
Ontario, September 1, 2015
PRESENT: The
Honourable Mr. Justice Diner
|
BETWEEN:
|
|
NK
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of a
July 15, 2014 decision [Decision] by an immigration officer refusing the
application for permanent residence [PR] of a refugee claimant on the basis of
inadmissibility due to section 34(1)(f) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act]. The PR application was based on a
positive refugee claim, decided by the Immigration and Refugee Board [Board] on
February 3, 1999. This judicial review was filed under section 72(1) of the
Act.
II.
The Facts
[2]
The Applicant is a national of Pakistan who
came to Canada in May 1997 and thereafter made a refugee claim. In February
1999, he was found to be a Convention refugee by the Refugee Protection
Division of the Board. The Applicant filed his PR application later that month.
[3]
An inadmissibility report pursuant to section
44(1) of the Act was issued on March 21, 2005 by a Canada Border Services
Agency [CBSA] officer. In that report, the CBSA officer
stated that since the Applicant had been a member in both the Mohajir Quami Movement and the Mohajir Quami Movement-Haqiqi [MQMH],
organizations found to have engaged in terrorism, the Applicant was
inadmissible to Canada for security reasons under section 34(1)(f) of the Act.
The CBSA officer subsequently referred the report to the Immigration Division
of the Board.
[4]
In February 2006, the Applicant made an
application for Ministerial Relief [Relief] under section 34(2) of Act (as it
then read).
[5]
The Immigration Division, in June 2006, found
that the Applicant did not come within section 34(1)(f) the Act.
[6]
The Minister successfully appealed that
Immigration Division decision to the Immigration Appeal Division [IAD] in
October 2007. The IAD found the Applicant to be inadmissible under section
34(1)(f) of the Act on the basis of his membership in the MQMH – that is, for
being a member of an organization that there are reasonable grounds to believe
engages in terrorism. A deportation order was issued against him.
[7]
The Applicant challenged this inadmissibility
decision in the Federal Court, but leave for judicial review was dismissed in
August 2008.
[8]
The Minister denied Relief in May 2012. The
Applicant challenged that denial in this Court, but by mutual consent the
Relief application went back for reconsideration. The Relief reconsideration
was pending at the time that written pleadings for this judicial review were
filed, but I was subsequently advised by the parties at the March 24, 2015
judicial review hearing that the Relief application has once again been refused
by the Minister. That second Relief refusal is currently the subject of a
separate judicial review application by the Applicant.
III.
Submissions and Decision Under Review
[9]
A Citizenship and Immigration Canada [CIC]
Senior Immigration Officer [Officer], by letter dated May 22, 2014, gave the
Applicant an opportunity to make updated submissions in support of his February
2009 PR application, on or before June 30, 2014. In response, by letter dated
June 27, 2014, the Applicant argued two key grounds. First, the Applicant submitted
that the law had changed since October 2007 when the IAD found him inadmissible
under section 34(1)(f) due to the impact of the ruling in Ezokola v Canada
(Citizenship and Immigration), 2013 SCC 40 [Ezokola]. Second, the
Applicant submitted that the Officer must hold the PR application in abeyance
until a final Relief decision is made.
[10]
The Officer comprehensively reviewed the
Applicant’s background, dating back to submissions made during his original
1999 refugee claim, all the way through to his July 2014 submissions. The
Officer found that the Applicant had admitted to involvement in the MQMH, an
organization that had engaged in terrorism. He concluded that the Applicant was
a full member in the impugned organization, based both on the IAD decision and
the Applicant’s statements in his July 25, 2011 letter to the Officer. On the
issue of Ezokola, the Officer stated that he gave “great weight” to the IAD decision and further that he
“…[did] not have the judicial authority to void the
IAD’s admissibility decision based on the Ezokola ruling.”
[11]
On the issue of timing, the Officer decided that there was no reason to
delay his Decision on the PR application pending the final outcome of the
Relief application.
[12]
The Officer thus refused the Applicant’s PR application,
finding that (i) there were reasonable grounds to believe the Applicant is
inadmissible to Canada under section 34(1)(f), (ii) he could not consider
the effect of Ezokola on the Applicant’s status, and (iii) it was
unnecessary to await the outcome of the Relief application. This judicial
review challenges the Officer’s negative Decision.
IV.
Standard of Review
[13]
I am reviewing a discretionary decision of an
administrative decision maker. Generally, the standard of review for decisions
relating to section 34(1)(f) of the Act is reasonableness (Nasseredine v
Canada (Minister of Citizenship and Immigration), 2014 FC 85 at para 20; Najafi
v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC
876 at para 82). As such, the Court will only intervene where there is an
absence of justification, transparency and intelligibility within the
decision-making process and where the decision falls outside of the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[14]
However, where questions of procedural fairness
are concerned, a different standard applies. Procedural fairness requires that
an applicant be provided with a meaningful opportunity to present the various
types of evidence relevant to his or her case and to have that evidence fully
considered (Miller v Canada (Minister of Citizenship and Immigration),
2015 FC 371 at para 16). This requires a much stricter review on the
non-deferential standard of correctness (Khosa v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12 at para 43).
V.
Issues and Analysis
A.
Considering Ezokola
[15]
The Applicant contends that the Officer erred
when he stated that he did not have the ability to reconsider an earlier IAD
decision on a determination of inadmissibility. The Applicant argues that the
law has changed since that 2007 IAD decision with the release of the Supreme
Court’s decision in Ezokola, which he brought to the Officer’s attention
and which the Officer wrongly declined to consider. Section 21(2) of the Act,
according to the Applicant, requires that the Officer consider whether Ezokola
changed the law relating to section 34(1)(f). While the Applicant concedes that
it would be a challenging exercise for a CIC officer to consider the impact of Ezokola,
given that Ezokola addressed a different section of the Act, it was
nonetheless relevant for this litigation, and the Officer should have done so.
[16]
The Respondent replies that the 2007 IAD
decision found the Applicant to be inadmissible under section 34(1)(f) and the
Officer made no reviewable error by following it. Ezokola involved the
interpretation of article 1F(a) of the United Nations Convention Relating to
the Status of Refugees, Can TS 1969 No 6, as adopted into the Act through
an entirely different part of the legislation, and thus has no effect on the
case at hand.
[17]
I agree with the Applicant that the Officer
committed an error in declining to consider the impact of Ezokola on
section 34(1)(f) of the Act. However, for the reasons that follow, it was not a
fatal error to the decision in this circumstance because of subsequent
appellate jurisprudence.
[18]
In terms of the inadmissibility analysis, the
Officer made a positive finding on section 34(1)(f) inadmissibility, placing
weight on previous decisions of the Board and arriving at his own conclusion as
to why the provision should continue to render the Applicant inadmissible. The
Officer engaged with the evidence and made findings about the MQMH and the
Applicant’s involvement in it. This analysis included a review of the
Applicant’s evidence from his refugee claim through to his subsequent
statements purporting to minimize his involvement with the MQMH.
[19]
However, the Officer erred in stating that he
did “not have the judicial authority to void the IAD’s
inadmissibility decision based on the Ezokola ruling” (Certified
Tribunal Record [CTR], page 7). The Officer should have considered the
relevance of an intervening Supreme Court decision, rather than abdicating
himself from any consideration of it.
[20]
The Applicant argues that the intervening Ezokola
decision vitiated the prior IAD decision due to its impact on the Act’s
provision in question (section 34(1)(f)). Procedural fairness dictates that
this position be considered and addressed. The Officer erred in refusing to do
so.
[21]
If the Officer lacked the “judicial authority” to consider the application of a
Supreme Court decision to the facts before him under the Act, any of its
affiliated regulations, or any internal CIC policies, neither the Officer nor
the Respondent provided evidence of any such restriction, and I could find none
myself. Indeed, the legislation and policy guidelines all point to the opposite
– that CIC officers making these PR decisions must be satisfied that the foreign national making an
application meets the requirements of both the Act and the Immigration and
Refugee Protection Regulations, SOR/2002-227 (see, for instance, section 11
of the Act, section 6.4 of CIC Operations Manual ENF 2/OP 18, “Evaluating Inadmissibility” [ENF 2]). The admissibility component of this
analysis requires the officer to also consider cases that interpret the law,
including of course, Supreme Court of Canada jurisprudence.
[22]
Ordinarily, the appropriate remedy for this type
of error would be to send the matter back for reconsideration. However, since
the hearing in this matter, the Federal Court of Appeal [FCA] released Kanagendren
v Canada (Citizenship and Immigration), 2015 FCA 86 [Kanagendren].
The FCA held that Ezokola does not change the existing legal test for
assessing membership in a terrorist organization under section 34(1)(f) (Kanagendren
at paras 28 and 38), directly negating the argument that the Applicant
attempted to advance before the Officer.
[23]
Normally, a breach of procedural fairness
results in the need to send the decision back for redetermination. However, a
reviewing Court may refuse to grant judicial review notwithstanding the error
where it is satisfied that the breach of procedural fairness could not have
affected the decision (Mobil Oil Canada Ltd v Canada-Newfoundland Offshore
Petroleum Board, [1994] 1 S.C.R. 202 at 228; Canada (Minister of
Citizenship and Immigration) v Patel, 2002 FCA 55 at paras 4-5; Sarker v
Canada (Minister of Citizenship and Immigration), 2014 FC 1168 at paras
16-17; Mwaura v Canada (Minister of Citizenship and Immigration) 2015 FC
874 at para 30).
[24]
As the issue in question has been decisively
concluded by the FCA in Kanagendren, it would be futile to send the
matter back for reconsideration: another officer would be bound by Kanagendren
and would end up with exactly the same outcome after considering Ezokola’s
impact on section 34(1)(f), rendering the exercise wholly futile.
B.
Sequencing of Decision-Making
[25]
The Applicant submits that the existing jurisprudence
leaves undecided the question of whether an officer, when deciding a PR
application, should await disposition by the Minister of the pending Relief
application. Moreover, the Applicant argues that under the former Immigration
Act, RSC, 1985, c I-2, the law required that the Relief decision had to be
made first. The Applicant notes that under section 34 of the current
legislation there is no requirement that the inadmissibility decision be held
in abeyance pending a determination for Relief (Azeem v Canada (Citizenship
and Immigration), 2012 FC 402; Poshteh v Canada (Minister of Citizenship
and Immigration), 2005 FCA 121) [Poshteh]). However, since the
Applicant’s Relief decision was pending at the same time that section 34(2) of
the Act, which permitted the Minister to grant Relief, was repealed, the
Applicant argues that he is entitled to its disposition under the terms of this
previous provision, pursuant to section 43 of the Interpretation Act, RSC, 1985, c I-21.
[26]
The Applicant also points to section 173(b) of
the Act, which requires the Immigration Division proceed without delay, noting
that there is no similar requirement for an immigration officer to dispose of
PR applications under section 21(2). The Applicant submits that in determining
the intent of Parliament, the statute must be interpreted purposively. There is
no purpose served by determining the PR application against the Applicant when
there is a pending application for Relief, which would, if decided positively,
cure the inadmissibility. The law has an interest in preventing a multiplicity
of proceedings.
[27]
Finally, the Applicant points to section 13.6 of
ENF 2, which was in effect when section 34(2) existed but has since been
deleted, and which stated that “…[t]he application for
entry into Canada should be held in abeyance while the Minister of PSEP
considers the matter of relief”.
[28]
The Applicant notes that generally, prospective
immigrants must apply for immigrant visas at Canadian visa posts abroad, but
Convention refugees are an exception, as they are allowed to apply for
permanent residence from within Canada. The Applicant argues that the intent of
the Manual’s procedural guidance was to have it apply to all applicants for
permanent residence, without regard to the location of filing, and so the
Officer erred in not delaying his Decision.
[29]
The Respondent replies that the Officer’s
approach was entirely reasonable and consistent with the law, which does not
require the Officer to await the outcome of a Relief application before
rendering a PR decision. Specifically, the Respondent points out that neither
the provisions concerning Relief nor PR address the order in which competing
applications must be processed, and thus the Officer’s decision to determine
one application before the other did not violate the legislation. Accordingly,
it does not constitute an error.
[30]
I agree with the Respondent on the issue of
sequencing, in that the Officer had every right to decide the application when
he did: there is simply nothing in the legislation, whether the Act or its
regulations, which prevents an officer from making a decision on a PR
application before a Relief application has been decided. Other relevant
interpretative sources, including jurisprudence and policy guidance, also allow
the Officer to proceed with making his Decision on a flexible timeline (see,
for instance, Operations Bulletin 524 below, or Poshteh at para 10).
C.
Fettering of Discretion
[31]
Connected to this issue of the sequence of
decision making, the Applicant contends that the Officer fettered his
discretion in making a premature decision by following internal CIC Operations
Bulletin 524 [OB 524] dated May 16, 2013 (See OB 524 in Affidavit of Gwen
Smoluk, Exhibit A). First, the Applicant argues that the Officer fettered his
discretion by failing to consult with CBSA to determine where the Relief
decision stood. Second, the Officer should have followed another policy
guideline – section 5.22 of CIC Immigration Manual IP5 – which allows for the
officer’s exercise of discretion in suspending processing pending a Relief
application.
[32]
The Respondent replies that there was no
evidence on the record that suggests the Officer followed the internal
memorandum. Even if he had, the Respondent submits that ultimately the law is
clear that officers have the ability to make PR decisions, in their discretion,
after considering the facts. This is, based on the record, clearly what the
Officer did. The proper exercise of discretion supersedes policy guidelines,
which are appropriate for officers to heed, as long as the guidelines do not
fetter the discretion of officers (Kanthasamy v Canada (Citizenship and
Immigration), 2014 FCA 113 at para 54-55, citing Lim v Canada (Minister
of Citizenship and Immigration), 2002 FCT 956 at para 4).
[33]
I find that if anything, the policy is that CIC
officers should not delay their decisions due to a pending Relief
application. The following extract of OB 524 makes that position quite clear.
This Operational Bulletin (OB) provides
instructions on the processing of applications for permanent residence (APR)
that are currently in inventory from persons who are inadmissible on grounds of
security (A34)…and with an outstanding application for Ministerial Relief
(MR)...
…
Effective immediately, APRs should no longer
automatically be held in abeyance pending a decision on MR request…
…
Previously, the Inland Processing Manual –
Chapter IP 10 – Refusal of National Security Cases/Processing of National
Interest Requests instructed officers to hold applications in abeyance
until a decision had been reached by the Minister of Public Safety to either
grant or refuse MR under relevant sections.
…
In Poshteh v Canada (Minister of
Citizenship and Immigration): 2005 FCA 121, the Federal Court of Appeal
established that there is no temporal aspect to subsection 34(2). This means
that a MR request can be submitted at any time. It further supports that
officers may process APRs to finalization, regardless of the status of the MR
application, if one has been submitted. The MR request will continue to be
processed accordingly, for a final decision by the Minister of Public Safety.
IP 5 was
updated to indicate that officers “may” hold APRs in abeyance pending an MR
decision in contrast to previous instructions requiring officers to
automatically hold applications in abeyance. This direction allows officers to
render a final decision on a case by case basis with flexibility, based on
circumstances.
Citizenship and Immigration Canada’s (CIC)
officers are to render a decision on all APRs and to no longer automatically
hold incoming APRs in abeyance while pending a MR decision from the Minister of
Public Safety. [Emphasis in original]
[34]
According to this policy guidance, officers have
the discretion to decide PR cases when they wish. They are no longer under
instruction to hold these cases in abeyance. There is no evidence that the
Officer fettered his discretion in any way. Furthermore, there is no indication
that the Officer relied on OB 524, and even if he did, he clearly considered
the facts that were before him in making his Decision, and articulated why he
concluded that the consequence of making a PR decision before the Relief
outcome would neither be unreasonable nor prejudicial:
…I find that the Applicant has shown me
little evidence he will suffer any concrete or lasting personal, financial or
legal damage by having to apply again for permanent residence should the
Minister subsequently grant relief from the inadmissibility under section 34(2)
of IRPA (which was in force when the Applicant made his initial application for
relief). I note that the Applicant is still a Convention Refugee in Canada so
he cannot now be removed from this country to Pakistan and he has a valid work
permit that is in force until the 25th of April 2015; in these
circumstances I find that requiring the applicant to submit another application
for permanent residence is not unreasonable nor is it prejudicial to the
Applicant [Officer’s Decision, AR, p 86].
[35]
Therefore, the Officer properly exercised his
discretion in deciding the PR application when he did. There is no evidence
that he was improperly constrained by any policy directive. Rather, the
evidence suggests that he considered the circumstances of this case and
exercised his discretion according to those circumstances (Yhap v Canada
(Minister of Employment and Immigration), [1990] 1 FC 722 (TD)).
D.
Procedural Unfairness
[36]
The Applicant states that the Respondent’s
internal documentation which, when not made available to the Applicant prior to
the Decision, resulted in a breach of his rights to a fair process. These
undisclosed documents included OB 524, as well as a departmental email produced
in the CTR which the Applicant received post-Decision.
[37]
The Respondent disagrees, stating that the
process was fair, that the Officer paid ample attention to the facts, and that
there is no duty for CIC or the officer to share every internal document and
email with an applicant. If that were the case, the disclosure process would
become completely unmanageable, particularly for a file such as this, which has
been active for over 15 years.
[38]
I agree that the Officer had no duty to share
the internal communications, whether internal emails or OB 524. The Officer
provided the Applicant with an opportunity to provide submissions on the PR
application, which the Applicant did. He then took those submissions into
consideration, which was evident in the Decision. Sharing all emails would be
unwieldy and there was no basis to share these internal communications. The
policy guidance relied on did not prejudice the Applicant, and there is no
obligation for the government to publish all such guidance.
VI.
Certified Questions
[39]
The Applicant proposed the following two
questions for certification:
i.
Does an immigration officer have the legal
authority to decide an outstanding application for permanent residence while
there is a pending application for Ministerial relief under former s. 34(2) or
present s. 42.1 of the Act which has not yet been finally determined?
ii.
Does an immigration officer, when deciding an
application for permanent residence, have the jurisdiction and/or obligation
under the Act, s. 21(2) to draw his or her own conclusions on admissibility of
the applicant where there has been a prior finding of inadmissibility by the
Immigration and Refugee Board and subsequent jurisprudence throws into question
the legal validity of that finding?
[40]
For question (i), nothing in law, policy or
procedure requires the officer to await the Relief decision, and for question
(ii), Kanagendren definitively pronounces on the law. The questions are
therefore neither determinative of this judicial review, nor do they transcend
the interests of the parties to the litigation and contemplate issues of broad
significance or general application (Zhang v Canada (Citizenship and Immigration),
2013 FCA 168 at para. 9).
Email this Content