Docket: IMM-3270-15
Citation:
2016 FC 449
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 20, 2016
PRESENT: The Honourable
Mr. Justice LeBlanc
|
BETWEEN:
|
|
FOUNDIE ABRAHAM
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
ORDER AND REASONS
Introduction
[1]
The applicant, a citizen of Haiti, contests,
through this judicial review, the decision rendered by an immigration officer
(the Officer) on June 25, 2015, determining her to be ineligible—for the
purposes of her application for permanent residence on humanitarian and
compassionate grounds, submitted to the respondent several weeks earlier, upon
the lifting of the temporary suspension of removals (TSR) to Haiti (in effect
since 2004)—for benefits under the Temporary Public Policy (TPP),
implemented in December 2014 upon the lifting of the TSR.
[2]
A decision in favour of the applicant would have
essentially granted her, throughout the entire processing period for her
application for permanent residence on humanitarian and compassionate grounds,
an administrative stay against enforcement of the removal order to which she
could be subject during this period.
[3]
The applicant maintains that the Officer’s
decision must be quashed on the grounds that the Officer did not provide
sufficient grounds for it. She maintains, in this regard, that the decision in
question did not enable her to understand why she was not eligible for benefits
under the TPP.
[4]
She also maintained in her initial statement
that the Officer had contravened the rules of procedural fairness by sending
her a decision in English. This action was definitely clumsy, and possibly
contrary to the requirements of the Official Languages Act, R.S.C.,
1985, c. 31 (4th Supp.), but insofar as the applicant did not demonstrate
that she had suffered harm as a result of this action with regard to the
procedural protection she was entitled to expect in this case, this argument
cannot stand. Furthermore, this argument was not resumed by the applicant in
her new statement, and her new attorney did not mention this item at the
hearing for this case.
Background
[5]
The applicant arrived in Canada following the
earthquake that ravaged Haiti in January 2010. She was 22 years old
at the time and was accompanied by her parents and her two brothers. Her
father, Gérard Jean Abraham (Mr. Abraham) has been a Canadian
citizen since 1979, and her mother has been a permanent resident since
2011. Shortly after the family arrived in Canada, Mr. Abraham applied for
Canadian citizenship on behalf of his three children. This application was
accepted in the case of the two brothers, but things proved more
complicated in the applicant’s case because—although she had always thought of
him as her father, and he had always thought of her as his daughter—she is not
Mr. Abraham’s biological daughter, nor his adopted daughter in any formal
sense. Ultimately, for reasons upon which is it not useful to elaborate within
the context of these proceedings, the application for citizenship made in the
name of the applicant was, on December 11, 2014, denied by Citizenship and
Immigration Canada authorities.
[6]
At around the same time, that is to say, on
December 1, 2014, the Canadian government, as authorized by
section 230 of the Immigration and Refugee Protection Regulations,
SOR/2002‑227, lifted the TSR to Haiti, which had been put in place in 2004.
It felt that the people of Haiti were no longer faced with a generalized risk. This
caused removal orders against Haitian nationals to become enforceable.
[7]
In the few days preceding the lifting of the
TSR, that is to say, on November 26, 2014, the respondent adopted, under
subsection 25.2(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act), the TPP for Haitian nationals. This
provision grants the Minister of Citizenship and Immigration the discretionary
power to examine the circumstances concerning a foreign national who is
inadmissible or who does not meet the requirements of this Act, and to grant
that person permanent resident status or an exemption from any applicable
criteria or obligations of this Act “if the foreign
national complies with any conditions imposed by the Minister and the Minister
is of the opinion that it is justified by public policy considerations.”
[8]
An operational bulletin (“OB 600”), dated January 23, 2015, whose
purpose was “to provide functional guidance with respect to the processing of
applications for permanent residence on humanitarian and compassionate
(H&C) grounds” following the lifting of the TSR to Haiti (and Zimbabwe), set
out the eligibility criteria for the TPP. Thus, anyone from Haiti making such
an application—and hoping to receive an administrative stay of the enforcement
of a removal order during the processing of said application—must meet the
following requirements:
a) be a national of Haiti;
b) have been residing in Canada on the day of the TSR lifting (December 1,
2014);
c) never have been found to be ineligible to have a refugee claim
referred to the Immigration and Refugee Board of Canada (IRB);
d) not be inadmissible on grounds of security, human or international
rights violations, criminality, serious criminality or organized criminality;
e) not have been excluded by the IRB from refugee protection under the
United Nations Convention Relating to the Status of Refugees;
f) not have had criminal charges dropped by the Crown to effect a
removal order;
g) not have an outstanding criminal warrant;
h) have applied for permanent residence on H&C grounds in Canada no
later than six months after the date of the TSR lifting or, for those who have
applied for refugee protection on or before the date of the TSR lifting and
whose claim is pending, no later than six months from a negative decision by
the IRB. This applies even if the IRB decision is made more than six months
after the date of the TSR lifting.
[9]
To be eligible for the TPP, the individual
making an application for permanent residence on humanitarian and compassionate
grounds following the lifting of the TSR must also, and this is the criterion
causing the issue in this case, “be the subject of a
removal order (including conditional removal orders) or have benefitted from
the Haiti Special Measures (HSM) at the time of the lifting of the TSR.”
The HSM, which ended on November 30, 2014, had been implemented to allow
certain Haitian nationals in Canada, affected by the 2010 earthquake in
Haiti, to apply for a work permit without needing a labour market opinion and
to benefit from health care coverage under the Interim Federal Health Program.
[10]
The applicant, who meets all of the other
criteria, is aware that she is not the subject of a removal order, but feels
that it is sufficient, with regard to this final criterion, to have benefitted
from the HSM at the time of the lifting of the TSR to be eligible for the
benefits of the TPP and therefore, for an administrative stay of the execution
of any removal order that could be brought against her, given that she is
without status in Canada while her application for permanent residence on
humanitarian and compassionate grounds is being processed.
[11]
The respondent admits, for its part, that the
two components of the criterion are not cumulative but that one or the other
must absolutely be met to allow for eligibility for benefits under the TPP.
Issue and applicable standard of review
[12]
Therefore, the question here is whether, as the
applicant alleges, the Officer’s decision, denying her eligibility for benefits
under the TPP on the grounds that she had not benefitted from the HSM at the
time of the lifting of the TSR, was tainted by an error justifying, under
section 18.1 of the Federal Courts Act, RSC 1985, c F‑7, the
Court’s intervention.
[13]
The parties agree that the argument of
insufficient grounds regarding the Officer’s decision must be analyzed using
the reasonableness standard. They are correct (Newfoundland and Labrador
Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
at paragraph 14 [2011] 3 SCR 708 [Newfoundland and Labrador
Nurses’ Union]).
[14]
Nonetheless, the applicant maintains that,
insofar as the consideration of the Officer’s decision requires an
interpretation of the TPP eligibility criteria, the applicable standard is the
standard of correctness, since this is a question of general importance related
to implementing non‑discretionary power.
[15]
We must be careful here not to confuse matters. The
decisions made by an immigration officer responsible for implementing a policy
adopted by the Minister of Citizenship and Immigration while exercising a
purely discretionary power cannot be held to a more rigorous standard than that
which applies to the Minister himself in developing and implementing policies
adopted under the Act.
[16]
It is now well-established that, other than in
cases of procedural fairness, the standard of correctness does not apply except
in questions (i) linked to the constitutional validity of legislation;
(ii) genuinely related to the jurisdiction of the administrative
decision-maker; (iii) of central importance to the legal system as a whole
and outside the specialized area of expertise of the administrative decision‑maker;
or, (iv) regarding the jurisdictional lines between two or more competing
specialized tribunals (Dunsmuir v. New Brunswick, 2008 SCC 9,
paragraphs 57–61, [2008] 1 SCR 190 [Dunsmuir]).
[17]
None of this applies in this case. Furthermore,
the TPP is a policy, not an Act or regulation. Strictly speaking, its
interpretation cannot, consequently, be characterized as a question of law (Rakheja
v. Canada (Citizenship and Immigration), 2009 FC 633, paragraph 29,
345 FTR 159 [Rakheja]). Therefore, insofar as an immigration
officer is called upon, in the implementation of a policy instituted by the
Minister, according to the discretionary powers conferred upon the Minister
under the Act, to interpret certain components of the policy, the standard of
reasonableness applies (Rakheja, at paragraph 33). If the wording
of the policy leaves the officer no latitude, a decision that is contrary to
this wording will be unreasonable.
Analysis
[18]
The applicant maintains that the Officer’s
decision did not allow her to understand why her application was denied. The
relevant portion of this decision reads as follows:
You are not eligible for the special
procedures announced under the temporary public policy following the lifting of
the temporary suspension of removals (TSR) on Haiti and Zimbabwe, because you:
[x] are not the subject of a removal
order (including a conditional removal order) and you were not benefiting from
the Haitian Special Measures at the time of the lifting of the TSR.
[19]
It is worth noting that insufficient grounds is
not, in itself, enough to justify setting aside a decision. This argument
requires two separate analyses—one regarding the grounds, and the other
regarding the outcome. In other words, it requires a more global exercise in
the sense that the grounds must be examined in relation to the outcome so as to
gain an understanding of the rationale behind the decision and to determine
whether this can reasonably be considered to be among the possible acceptable outcomes,
in light of the facts and the law (Newfoundland and Labrador Nurses’ Union,
paragraph 14; Dunsmuir, at paragraph 47).
[20]
In my opinion, the Officer’s decision clearly
explains why the applicant is not eligible under the TPP for the purposes of
her application for permanent residence on humanitarian and compassionate
grounds. The Officer had to be satisfied that the applicant met each of the
policy’s criteria, as stated in the bulletin BO 600. This is what he
did. In my opinion, the Officer did not need to provide any further
justification for his decision in order to understand the underlying rationale
and to determine if it fell within a range of possible, acceptable outcomes,
within the meaning of Dunsmuir.
[21]
What the applicant is ultimately contesting is
the very basis of the decision. She maintains that the Officer wrongly
interpreted the criterion that required her to have benefitted from the HSM at
the time of the lifting of the TSR. The applicant admits that she did not take
advantage of the HSM before the lifting of the TSR, on December 1, 2014,
but she argues that she did not do so in due time because she was unable to
work and was awaiting her Canadian citizenship. She maintains that the Officer
should have taken these two factors into account and that he should have, under
the circumstances, opted for a loose interpretation of the TPP eligibility
criteria. In other words, the applicant is arguing that it was sufficient, in
this context, for her to have been eligible for the HSM at the time of the
lifting of the TSR to be considered as having benefitted from the HSM and as
meeting, by the same token, the TPP criteria.
[22]
I cannot subscribe to this argument. Not only
does it go against the wording used in the document—bulletin BO 600—aiming
to operationalize the TPP (the applicant “must . . . have
benefitted” from the HSM “at the time of the
lifting of the TSR,”) which, without twisting its meaning, clearly
refers to taking concrete actions within a specific time period. However, it
does allow for an element of discretion on the part of those immigration
officers called to implement the TPP, which the wording of the policy, even
here, does not provide for or consider.
[23]
In this regard, the Officer did not have any
latitude: he had to ensure that a certain number of criteria—all perfectly
objective—were met, in order to determine whether the applicant was eligible
for the TPP (Terante v. Canada (Citizenship and Immigration), 2015 FC 1064,
at paragraph 34). The applicant, as she herself admits, believing she had
legitimate reasons for failing to do so, did not concretely take advantage of
the HSM, even though she was eligible for them. Despite the unfortunate nature
of the situation, the TPP criteria, as stated in the bulletin BO 600, are
clear on this, to the point that the Officer, in my opinion, had no other
choice under the circumstances but to decide as he did.
[24]
The applicant criticizes the respondent’s
position in this instance, alleging that it goes against the very purpose
behind the establishment of the TPP, which was to protect Haitian nationals
affected by the lifting of the TSR. She also argues that an examination of the
body of administrative documents introduced into evidence by the respondent
reveals a certain dichotomy regarding the TPP eligibility criteria,
specifically Appendix C of the affidavit made by the respondent’s affiant.
Yet, as the respondent notes, this appendix refers to unsuccessful refugee
protection claimants subjected to a 12‑month blackout period for
consideration of any applications for permanent residence on humanitarian and compassionate
grounds. The applicant does not belong to this category of Haitian nationals
residing in Canada. Regarding the rationale behind the TPP, it is not up to the
Court to question the wisdom of a government policy as opposed to its legality,
even though in this case one could very easily imagine that the Minister could
have intended to prioritize, in defining the eligibility criteria for the TPP,
those who had actually applied for the HSM in due time, namely, before the
lifting of the TSR.
[25]
That said, the applicant is in a rather unusual,
and ultimately unenviable, position. Although the Canadian status of all of her
immediate family members is secure, hers remains uncertain and leaves her
subject to a possible removal. It is to be hoped that her particular situation,
which is due in part to circumstances beyond her control, will be duly
considered when her application for permanent residence on humanitarian and
compassionate grounds is examined, and that her application will be processed
with the expeditiousness required in the circumstances.
[26]
Counsel for the parties have agreed that there
is no cause, in this case, to certify a question to the Federal Court of
Appeal. I am also of that view.
Email this Content