Docket: IMM-2311-16
Citation: 2017 FC 70
Ottawa,
Ontario, January 19, 2017
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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MARS VJ
TACADENA CRISTOBAL
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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
I.
Nature of the Matter
[1]
This is an application for judicial review by
Mars VJ Tacadena Cristobal [the Applicant] pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA], of a decision
made by a Visa Officer [the Officer], dated May 18, 2016, in which the
Applicant was not granted permanent resident [PR] status either as a member of
the family class, pursuant to paragraph 117(9)(d) of the IRPA, or under
subsection 25(1) humanitarian and compassionate [H&C] grounds [the
Decision].
[2]
The application is granted for the following
reasons.
II.
Facts
[3]
The Applicant is a 27-year-old citizen and
resident of the Philippines. He sought PR status as a member of the family
class. His wife, a Citizen of Canada (previously a permanent resident, also
from the Philippines), was his sponsor. After being made aware that he was not
admissible as a member of the family class, the Applicant sought permanent
resident status on H&C grounds, given that both his wife and Canadian-born
daughter had Citizenship status and were living in Canada. Both of the
Applicant’s claims were denied.
[4]
The Applicant met his sponsor and they began
their relationship in 2005. The sponsor moved to Canada in 2007 as part of the
live-in caregiver program. The two were engaged on November 15, 2009 and
married on March 29, 2010. They have one child together, a young daughter, who
was born in Canada in December 2010. The sponsor and the daughter have returned
to the Philippines twice since the daughter’s birth to visit the Applicant,
once in 2011 and once in 2012; there is no evidence they have returned since. Communication
has allegedly been maintained through the use of telephone, Skype and Facebook.
[5]
The Applicant’s sponsor landed as a permanent
resident in Canada on August 31, 2010. She did not declare the Applicant as her
spouse or dependant on her permanent residence application. The sponsor claims
this was an “innocent mistake”, as it did not
occur to her that she would have to update her file if the changes occurred
during the application processing period. It must be noted, however, that
direction to this end was included in the procedural letters she received
during the PR application process. Furthermore, the sponsor submitted other
updated information during that very same processing period.
[6]
The Applicant submitted his application for
permanent resident status as a member of the family class on February 16, 2015.
As part of his application, the Applicant submitted a police certificate from
the National Bureau of Investigation [NBI] in the Philippines, as well as a
police clearance form and several other documents attesting to his non-existing
criminal record. The NBI stated “No Criminal Record”.
[7]
On July 9, 2015, the Applicant received a
procedural fairness letter [PFL] making note of the concern that he may not
meet the requirements for immigration to Canada in that his wife had not
declared him in her application for PR, which would render him inadmissible.
[8]
The Applicant’s counsel submitted a response to
the PFL in which he requested that his H&C application be considered based
entirely on the best interests of the Applicant’s child [BIOC], i.e., that she
be reunited with her father “so that he may participate
in her upbringing.” The letter also states that the sponsor, the
Applicant’s wife, “would benefit from the support of
her husband, both financially and emotionally, if he were able to join his
family in Canada.”
III.
Decision
[9]
On May 18, 2016, both the Applicant’s
application for PR status as a member of the family class and his request for
PR status on H&C grounds were denied.
[10]
In this application for judicial review, the
Applicant does not dispute that he does not qualify as a member of the family
class.
[11]
Rather, his complaint is in regards to the
Officer’s denial of his H&C claim which turned on the BIOC.
[12]
The Officer’s GCMS notes as regards his H&C
request make note of the following:
•
The limited documents on file to establish a
genuine and continuing relationship between the Applicant and his sponsor;
•
The 5-year delay between the Applicant and his
sponsor’s marriage and the date on which the sponsorship application was
submitted;
•
The lack of any indication that the sponsor and
the child had visited the Applicant in the four years following their visit in
2012;
•
The child was born and has resided in Canada
with her mother since 2010 without the physical presence of her father;
•
The evidence of 1 years’ worth of correspondence
between the Applicant and his sponsor does not indicate in what year it
occurred; there is no evidence on file of any other correspondence between the
two and this correspondence does not appear to include or discuss the child and
only 2 photos of the child are shared during the entire years’ worth of
correspondence submitted as evidence;
•
The Applicant requested an additional 30 days to
submit evidence of Skype and other internet and telephone communication,
however he did not submit any such evidence despite being granted the time
extension; and
•
The sponsor may have gained an advantage from
not declaring the Applicant on her PR application, as his criminal record
checks indicate that he has been charged with a criminal offence.
[13]
It is from this Decision that the Applicant
seeks judicial review.
IV.
Issues
[14]
This matter raises the following issues:
1.
Whether the Officer breached the duty of
fairness by failing to provide the Applicant with an opportunity to address
concerns regarding his criminal record in the Philippines?
2.
Whether the Officer’s finding regarding the best
interests of the child was reasonable?
V.
Standard of Review
[15]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
An officer’s H&C findings are reviewed on the standard of reasonableness: Kanthasamy
v Canada (Citizenship and Immigration), 2015 SCC 61 at para 44 [Kanthasamy];
Maroukel v Canada (Minister of Citizenship and Immigration), 2015 FC 83
at para 21, Boswell J [Maroukel]; Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at para 18. The decision of
whether to grant or deny an exception for humanitarian and compassionate
reasons is “exceptional and highly discretionary; thus
deserving of considerable deference by the Court”: Qureshi v Canada
(Minister of Citizenship and Immigration), 2012 FC 335 at para 30. The
highly discretionary nature of H&C assessments results in a “wider scope of possible reasonable outcomes”: Holder
v Canada (Minister of Citizenship and Immigration), 2012 FC 337 at para 18;
Inneh v Canada (Minister of Citizenship and Immigration), 2009 FC 108 at
para 13.
[16]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
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.
[17]
Questions of procedural fairness are reviewed on
the correctness standard: Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 43. In Dunsmuir at para 50, the Supreme Court of Canada
explained what is required when conducting a review on the correctness
standard:
When applying the correctness standard, a
reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own
view and provide the correct answer. From the outset, the court must ask
whether the tribunal’s decision was correct.
[18]
The Supreme Court of Canada also instructs that
judicial review is not a line-by-line treasure hunt for errors; the decision
should be approached as an organic whole: Communications, Energy and Paperworkers
Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34.
Further, a reviewing court must determine whether the decision, viewed as a
whole in the context of the record, is reasonable: Construction Labour
Relations v Driver Iron Inc, 2012 SCC 65; see also Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62.
VI.
Analysis
[19]
In my view, the determinative issue in this
application is the failure of the Officer to give the Applicant notice of the
Officer’s concerns respecting the Applicant’s criminal record in the
Philippines. I also have reservations about the adequacy of the BIOC in this
case.
[20]
The Applicant, as Canada requires, filed a
report from the National Bureau of Investigations [NBI] stating “No Criminal Record”. The record however makes it abundantly
clear that reports from this particular NBI are far from easy to interpret. In
fact, CBSA information in the record indicates even so simple a statement as
this requires “interpretation of misleading remarks.
The true meaning of the remarks is not evident from the description and can be
incorrectly interpreted unless one knows that the remarks really stand for.”
CBSA provides no less than seven (7) possible meanings of a “No Criminal Record” report from the NBI. In light of
this, CBSA states that “…officers should ask the
applicant to provide court documents and police reports and an enhanced NBI
clearance report detailing the reasons for the remark in order to be able to
determine criminal admissibility.”
[21]
Notwithstanding this advice from CBSA, the
Officer’s case notes state that the “No Criminal Record”
report indicates “that the Applicant has been charged
with a criminal offence.” Not only this, but the Officer then speculates
with respect to both the Applicant and his wife, the sponsor: that the
Applicant “may be inadmissible”, and in addition
the wife may also be inadmissible as a result of her having obtained Canadian Citizenship
by not declaring her spouse “whose criminal record may
have rendered her inadmissible to Canada.”
[22]
Further, and contrary to CBSA’s advice, the
Officer did not ask the Applicant to provide court documents and police reports
and an enhanced NBI clearance report detailing the reasons for the remark in
order to be able to determine criminal admissibility.
[23]
These very serious conclusions were not brought
to the attention of the Applicant. The procedural fairness letter did not refer
to them. There is no way of determining to what extent these considerations
influenced the decision to turn down the H&C application.
[24]
In my view this was not fair. The Officer had no
concrete basis on which to conclude that the Applicant had been charged with a
criminal offence, or that the Applicant and or his wife might be inadmissible.
A procedural fairness letter was clearly indicated in this situation. It was in
fact urged by CBSA - with specific instructions as to what should be asked for.
Nothing in that regard was done.
[25]
I am unable to determine the extent to which
this procedural unfairness influenced the ultimate decision to deny the H&C
application. It is not safe to let this decision stand given this relatively
serious breach of natural justice. Therefore and on this basis judicial review
must be granted.
[26]
Before leaving this matter, I also wish to note
that the BIOC analysis in this case is quite short. This may reflect the fact that
the BIOC submissions were quite brief. It may be that the BIOC assessment is
ultimately reasonable, that is to be decided on the reconsideration I am
ordering. However, in this case the Officer did not come to a conclusion on the
BIOC; rather the notes record a number of BIOC factors and then they run into
the issue of criminality, and ultimately conclude that H&C is not
established. There is no conclusion on BIOC which in my view is something that
should not be left hanging unresolved if it is to comply with Kanthasamy.
[27]
In my respectful view, this Decision is tainted
by procedural unfairness as noted above. Therefore judicial review must be
ordered.
VII.
Certified Question
[28]
Neither party proposed a question to certify,
and no such question arises.
VIII.
Conclusion
The application for judicial review is
granted, and this matter must be remanded for reconsideration. No question is
certified.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application for judicial review is granted, the decision of the Visa Officer is
set aside, the matter is remanded for redetermination by a different Visa
Officer, no question is certified, and there is no order as to costs.
“Henry S. Brown”
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