Docket: IMM-2255-15
Citation:
2016 FC 182
Ottawa, Ontario, February 11, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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JAVED MEMON
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision dated April 30, 2015 of a Senior Immigration Officer [Officer] of
Citizenship and Immigration Canada [CIC], in which the Officer refused to
reconsider an earlier decision denying the Applicant’s application for
permanent residence on Humanitarian and Compassionate [H&C] grounds.
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Applicant is a Pakistani national. He
arrived in Canada on June 15, 1998, and his claim for refugee protection was
denied in 1999. In November 1999, the Applicant married a Canadian citizen, who
sponsored him, and in 2000 he submitted an application for permanent residence,
supported by a request under H&C grounds for exemption from immigrant visa
requirements. As he was advised that the Minister believed that he was
inadmissible due to his membership in the Muttahida Quami Movement (MQM-A), he
submitted an application for ministerial relief from such inadmissibility, which
application remains pending.
[4]
The Applicant understands that, until
approximately 2013, CIC policy was not to decide applications for permanent
residence without a decision on a relevant ministerial relief application.
However, after a change in policy in 2013, a CIC officer reviewed the file,
determined on or about March 11, 2015 that, notwithstanding the H&C grounds
argued by the Applicant in 2000, he was inadmissible to Canada on security
grounds pursuant to Section 34(1)(f) of the Immigration
and Refugee Protection Act, SC
2001, c 27 [IRPA], and denied his application.
[5]
The Applicant then provided CIC with additional
submissions requesting reconsideration of the decision denying his application
for permanent residence. On April 30, 2015, the Officer refused this request
for reconsideration. This refusal is the decision that is the subject of this
judicial review.
II.
Impugned Decision
[6]
In examining the Applicant’s request, the
Officer was guided by CIC’s Inland Processing Manual IP5 [IP5], which provides
a non-exhaustive list of factors that may be relevant to consider when a
request for reconsideration of a previous H&C decision is received.
[7]
The Officer noted that the Applicant raised
issues that had been dealt with in the previous H&C decision including
establishment factors. The Applicant also argued disproportionate hardship due
to his inability to support himself and lack of familial support. He had not
previously raised the economic hardship factor, but the Officer found that
there were no recent changes to his lack of familial support and the fact that
the Applicant had not previously elected to include these factors did not
constitute reasons for reconsideration.
[8]
The Officer found that similar reasoning applied
to the Applicant’s assertion that there would be problems arising from his interfaith
marriage if he were to return to Pakistan, as he had been married since 1999
and any such issue should have been raised earlier.
[9]
Overall, the Officer concluded that the
Applicant was seeking a re-examination of some factors that were already
examined in the application for permanent residence that had been refused, as
well as an examination of factors that had not previously been raised but which
had not recently arisen. Therefore, the Applicant’s reconsideration request was
refused.
III.
Issues and Standard of Review
[10]
The Applicant submits the following issues:
A.
What is the applicable standard of review?
B.
Did the Officer unreasonably fetter her
discretion to reconsider?
C.
Did the Officer err in not reconsidering the
Applicant’s application for permanent residence in Canada in light of the
submissions?
D.
Did the Officer err in not considering the
exemption that the Applicant was seeking within the submission?
[11]
The parties agreed in oral argument that the
standard of review applicable to the arguments raised by the Applicant is
reasonableness. I concur (see Mancheno v Canada (Minister of Citizenship and
Immigration and Minister of Public Safety), 2013 FC 66, at para 10), and I
consider the issue on this application to be whether the Officer’s decision to
refuse the reconsideration request was reasonable.
IV.
Submissions of the Parties
A.
The Applicant’s Position
[12]
The Applicant argues that the Officer fettered
her discretion. No decision has yet been made on the ministerial relief
application. However, in 2013, the CIC policy changed and permitted decisions
on H&C applications while ministerial relief applications were still
pending. The Applicant’s request for reconsideration was based on the fact that
he had not been advised of this change. His application for permanent residence
had been outstanding since 2000, and he did not receive notice of the intention
to refuse and an opportunity to make submissions prior to the refusal. In
particular, the Applicant wished to seek an exemption on H&C grounds from
the application of 34(1) of IRPA, which was permitted under the law as
applicable to his original application but under current law would not be
permitted in a new H&C application.
[13]
The Applicant submits that the Officer failed to
take into account this aspect of the Applicant’s request, finding that he was
limited to considering the factors set out in IP5 and only considered those
factors, which the Applicant argues to be an improper fettering of discretion.
The Applicant argues that it is trite law that guidelines can be used as guides
to assist officers in making decision, but cannot be treated as rigid rules
that fetter discretion (see Yhap v Canada (Minister of Employment and
Immigration), [1990] FCJ No 205). The Applicant’s position is that the CIC
did not consider the change in law and policy as noted in his request for
reconsideration, as evidenced by the fact that she concluded that the Applicant
could submit a new H&C application.
[14]
The Applicant submits in the alternative that
the Officer erred because she ignored relevant evidence and facts, specifically
the Applicant’s explanation that he could no longer make a request for an
exemption because in a new application the bar against overcoming section 34(1)
of IRPA would apply. Also, while the Officer noted that many of the factors
argued by the Applicant could have been submitted before, she failed to
understand that they were not submitted because the application had been
refused without notification.
B.
Respondent’s Position
[15]
The Respondent submits that no arguable issue is
raised by the Officer’s decision not to re-open the decision. An immigration
officer is not obligated to reconsider an application for permanent residence.
Rather, an officer considering a request to reconsider has a limited role and
must determine if, given the relevant circumstances in a given case, it is
opportune to exercise his or her discretion to reconsider (see Kurukkal v
Canada (Minister of Citizenship and Immigration), 2010 FCA 230 [Kurukkal]
at para 4-5). There is no general duty upon an officer to reconsider an
application for permanent residence with the receipt of new information, nor is
there an obligation to provide detailed reasons for deciding not to do so (see Mojica
v Canada (Citizenship and Immigration), 2014 FC 35).
[16]
The Respondent does not dispute that there was a
change in CIC policy as described by the Applicant. However, the Respondent’s
position is that the Applicant’s contention, that a change in legislation or
policy relating to the processing of H&C applications was somehow relevant to
the reconsideration motion, ignores the fact that the change occurred well
before the March 2015 refusal of the Applicant’s H&C application.
V.
Analysis
[17]
The Respondent refers to the decision of the
Federal Court of Appeal in Kurukkal as explaining the role of an
immigration officer when presented with a request for reconsideration of an
H&C decision. At paragraphs 4-5, the Court of Appeal held as follows:
[4] In this case, the decision-maker
failed to recognize the existence of any discretion. Therein lay the error. The
immigration officer was not barred from reconsidering the decision on the basis
of functus officio and was free to exercise discretion to reconsider, or
refuse to reconsider, the respondent’s request.
[5] The judge directed the immigration officer
to consider the new evidence and to decide what, if any, weight should be attributed to it. In our view,
that direction was improper. While the judge correctly concluded that the
principle of
functus officio does
not bar a reconsideration of the negative section 25 determination, the
immigration officer’s obligation, at this stage, is to consider, taking into
account all relevant circumstances, whether to exercise the discretion to
reconsider.
[18]
I agree with the Respondent’s position that an
immigration officer is not obligated to reconsider an application for permanent
residence. Rather, the obligation is to conduct what other authorities have
referred to as a “screening exercise” (see Charles
v Canada (Citizenship and Immigration), 2014 FC 772 at para 51) to
determine whether or not to exercise the discretion to reconsider. However, as
stated in Kurukkal, in determining whether to reconsider, the officer
must take into account all relevant circumstances.
[19]
It is in this respect that I conclude the
Officer erred in her decision whether to reconsider the Applicant’s
application. It was clear from the Applicant’s submissions to the Officer in
the request for reconsideration that he was asking the Officer to consider
information and argument relevant to H&C grounds, in support of relief from
inadmissibility under section 34(1) of IRPA, because of certain circumstances
surrounding the issuance of the recent H&C decision. Specifically, the
Applicant notes that his application for permanent residence on H&C grounds
had been outstanding for 15 years and that he believed that no decision would
be made on that application while his application for ministerial relief was
still pending. He also referred to the fact that he could seek an exemption
from inadmissibility under section 34(1) on H&C grounds under his
application dating back to 2000 but would be unable to do so under any future
application because of intervening change in law.
[20]
Effectively, the Applicant was explaining that
he had anticipated having an opportunity to make submissions on H&C
considerations, relevant to relief from inadmissibility, after receiving the
decision on ministerial relief and before the H&C decision was made. It was
for this reason, and because he could not seek relief from inadmissibility in a
future H&C application, that he was asking the Officer to reconsider his
application, taking into account evidence and submissions that related to
events pre-dating the Officer’s recent H&C decision.
[21]
I express no opinion on whether circumstances of
this sort warrant reconsideration of an H&C decision. However, there is no
indication in the Officer’s reasons that she considered whether these
circumstances warranted such reconsideration. I agree with the Respondent’s
position that there is no general duty on the part of an immigration officer to
provide detailed reasons for deciding not to exercise his or her discretion to
reconsider an application (see Trivedi v Canada (Citizenship and
Immigration), 2010 FC 422 at para 30). However, the Officer did provide
reasons for declining to reconsider the Applicant’s application, and those
reasons provide no indication that the Officer understood or considered the
circumstances the Applicant was raising in support of his request for
reconsideration.
[22]
The Officer’s decision refers to the Applicant
having raised establishment factors that had been dealt with previously, as
well as economic hardship problems arising from his interfaith marriage which
had not previously been raised but which were not new or recent developments.
The Officer states that, if the Applicant had wanted these factors examined, he
could have brought them forward for consideration at any time prior to the
March 2015 decision. Most significantly, the Officer also states that the
Applicant has not explained why he had not previously brought this forward or
why this information was not available for consideration in the original
application for permanent residence. The Officer expresses the view that any
examination of these factors should be done under a new application.
[23]
Not only do the Officer’s reasons display no
consideration of the circumstances raised by the Applicant in support of his
request for reconsideration, but the statement that the Applicant has not
explained why he had not previously brought forward the factors he wanted
examined demonstrates that the Officer did not consider those circumstances,
i.e. that the Applicant had understood pursuant to CIC’s policy that the
decision on his application would not be made until after his request for
ministerial relief was decided, such that he would have an opportunity to make
further submissions on the former after receiving the decision on the latter.
The Officer’s comments that the factors now raised by the Applicant should be
advanced under a new application also indicate that she had not considered the
Applicant’s point that the change in law precluded him from seeking H&C
relief against his inadmissibility in a new application.
[24]
I find that the Officer’s obligations when
presented with the request for reconsideration required her to turn her mind to
the circumstances raised by the Applicant and that she did not do so.
Regardless of whether her failure to do so resulted from too strict an
adherence to the guidelines in IP5, and therefore a fettering of her
discretion, or whether the Officer simply misunderstood or overlooked the
arguments raised by the Applicant, I find that such failure represents a
reviewable error rendering the decision unreasonable. The Applicant’s request
for re-consideration must therefore be referred to another officer for
re-determination. This does not mean that that the March 2015 decision on the
Applicant’s application for permanent residence must necessarily be
reconsidered, only that the decision whether or not to reconsider must be
revisited in the context of the circumstances raised by the Applicant in
support of his request.
[25]
Neither party proposed a question of general
importance for certification for appeal.
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