Docket: IMM-2092-16
Citation: 2016 FC 1412
Ottawa,
Ontario, December 23, 2016
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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ASMA BUSHRA
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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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
Asma Bushra [the Applicant] pursuant to s. 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision made by
a Visa Officer at the Canadian High Commission in Islamabad, Pakistan, dated
March 17, 2016, in which the Applicant’s application for permanent
residence as a de facto dependent family member was denied [the
Decision].
[2]
The Applicant is a 29-year-old, high-school
educated citizen of the Islamic Republic of Pakistan. She has two sisters, Uzma
and Nadara. Both parents are deceased: her mother passed away in 2009 and her
father in 1988, just a year after the Applicant was born. The Applicant has
some family in Lahore, Pakistan but she is not close with them. Her sister
Nadara lives in Pakistan as part of a ‘joint family’; this means that she lives
with her husband, his siblings and his parents. The Applicant’s sister Uzma
married Ghulam Murtaza Nadir Butt [Ghulam or Brother-in-Law] in 2002. The
Applicant and her mother moved in with Uzma and Ghulam in 2002, when the
Applicant was 15 years old; the Applicant has lived with her sister and
Brother-in-Law since then. Her sister Uzma is like a mother to her.
[3]
It is uncontested that the Applicant has never
worked. Her Brother-in-Law has always taken care of her.
[4]
The Applicant’s Brother-in-Law is Ahmadiyya and
fled from Pakistan to Sri Lanka in 2012 having been threatened with death by
his brother because of his religion. He was accepted as a refugee in Canada on
September 16, 2015, as a member of the Convention Refugee Abroad class. He
submitted a request to allow his wife and child, who he left behind in
Pakistan, to join him in Canada. He coupled that with a timely request the
Applicant come to Canada as a continuing part of his family as a de facto
dependent family member under the one-year window opportunity [OYW] provisions
in the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].
[5]
On December 8, 2015, the Applicant’s
Brother-in-Law received a letter from CIC’s Resettlement Assistance Unit
stating that the Applicant had been “found to meet the
eligibility requirements of the One-Year Window of Opportunity provisions”.
[6]
Of particular relevance, the letter to the
Brother-in-Law included the following two sentences:
After a careful review of both your file and
the information contained in the Request Form for Processing Non-Accompanying
Family Members … completed by you, it has been determined that the following
family members have been found to meet the eligibility requirements of
the One-Year Window of Opportunity provisions:
[names of wife
and child omitted]
Asma BUSHRA DOB: 30APR1987 DEFACTO
DEPENDENT
…
Final determination of eligibility
will be completed by Visa office.
[all emphasis in original]
[7]
A Toronto-based Visa Officer reviewed the file
and noted that the Applicant is unmarried, that she has never worked, that her
identity and her relationship with her sister has been confirmed and that her
Brother-in-Law has always taken care of their financial expenses. That officer
determined that an interview was warranted to assess the Applicant’s dependency
on her Brother-in-Law.
[8]
On March 2, 2016, the Applicant received a
letter from the High Commission’s Visa Section informing her that her interview
would take place on March 17, 2016 at the High Commission in Islamabad.
[9]
This letter convoking the interview did not make
any reference to Humanitarian and Compassionate [H&C] concerns or
considerations: it informed her only of the date and time of the interview and
the documents she had to bring.
[10]
The Applicant and her sister Uzma attended as
requested for their interviews. Both were interviewed by the same Visa Officer
on the same day; Uzma, her sister, was interviewed first and the Applicant
second.
[11]
The Visa Officer’s notes do not indicate that
the Visa Officer raised the issue of H&C considerations either with the
Applicant or her sister, although from what appear to be notes the Visa Officer
made for his or her guidance, it is clear that H&C considerations was to be
the purpose of the interview.
[12]
The only reference to H&C in the notes is in
the Decision dismissing her claim after the hearing was over. The Visa Officer
denied the Applicant’s application for status as a de facto dependent
family member under the OYW.
II.
Issues
[13]
The only issue is whether the Applicant was
denied procedural fairness in not being informed before her interview that the
issue to be determined was whether or not she could establish a claim based on
H&C grounds.
III.
Standard of Review
[14]
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.”
The standard of review on a challenge to a Visa Officer’s assessment of an
application is reasonableness: Dhillon v Canada (Minister of Citizenship and
Immigration), 2009 FC 614 at 19; Li v Canada (Minister of Citizenship
and Immigration), 2008 FC 1284 at para 15. H&C decisions are also to be
reviewed on a standard of reasonableness and considerable deference is
afforded: Okbai v Canada (Citizenship and Immigration), 2012 FC 229 at
para 9 [Okbai].
[15]
Procedural fairness on the other hand, requires
that applicants be informed of concerns and given an opportunity to disabuse
officers of those concerns: Sidhu v Canada (Minister of Citizenship and
Immigration), 2012 FC 515 at paras 75-76, citing Rukmangathan v Canada
(Minister of Citizenship and Immigration), 2004 FC 284 at para 22, Mosley
J:
In my view, the Federal Court of Appeal's
endorsement in Muliadi, supra, of Lord Parker's comments in In re H.K.
(An Infant), [1967] 2 Q.B. 617, indicates that the duty of fairness may
require immigration officials to inform applicants of their concerns with
applications so that an applicant may have a chance to "disabuse" an
officer of such concerns, even where such concerns arise from evidence tendered
by the applicant. Other decisions of this court support this interpretation of Muliadi,
supra. See, for example, Fong v. Canada (Minister of Employment and
Immigration), [1990] 3 F.C. 705 (T.D.), John v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 350 (T.D.)(QL) and Cornea
v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm. L.R.
(3d) 38 (F.C.T.D.), where it had been held that a visa officer should apprise
an applicant at an interview of her negative impressions of evidence tendered
by the applicant
[16]
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.
IV.
Relevant Provisions
[17]
In this case, the certified record contains an
extract from the Respondent’s intranet policy governing determining dependent de
facto family members. This document is what the Visa officer relied upon in
this matter and was placed in the record by the Respondent. Relevant extracts
of this statement make it clear such persons need not be relatives or family
members. In addition this document makes it clear that instead of being
assessed as refugees in their own right, the IRPA permits claimants such
as the Applicant to be assessed based on H&C considerations. An example
given is that of a sister-in-law, such as this Applicant, who has no means of
support in a culture where it is normal that the principal applicant would take
on responsibility for her care and support as appears to be the case in this
matter:
Determining dependent de facto family
members:
▼Who is eligible?
The accompanying de facto family
member:
1.
must be dependent on the family unit in which
membership is claimed and not meet the definition of family member. The
relationship may be by blood, marriage or strictly through long association (i.e.,
may not necessarily be a relative). The dependency must be emotional or
financial and will often be a combination of both factors. Such persons would
normally, but not exclusively, live with the principal applicant as members of
the same household, and, in many cases, face the same dangers of persecution as
the principal applicant.
…
▼A non-exhaustive list of examples
of who may be found to be a de facto dependant family member:
…
• A widowed sister or sister-in-law
who has no means of support in a culture where it is normal that the principal
applicant would take on responsibility for her care and support.
...
▼What if the de facto dependant
does not meet the refugee definition in his or her own right?
In the refugee context, A25.1 (humanitarian
and compassionate consideration) may sometimes be an appropriate tool to
facilitate the resettlement of de facto dependants who do not meet the
refugee definition in their own right but whom the officer believes should be
resettled with the principal applicant.
[emphasis
added]
V.
Analysis
[18]
The only issue in this case is procedural
fairness, which in this case is fact-driven and circumstance dependent.
[19]
While undoubtedly the only substantive issue of
concern to the Visa Officer was the Applicant’s H&C eligibility, there is
no reference to H&C in the letter convoking the interview. That her
interview would turn on H&C considerations is clear from the Toronto-based
Visa Officer’s notes to file. Moreover, while the Visa Officer set out to
explore the issue of H&C in the outline prepared for this interview, the
Visa Officer did not inform the Applicant that the real purpose of the
interview was to discuss her H&C eligibility. In fact, insofar as the
Applicant is concerned, the first time H&C was mentioned in her interview,
according to the system notes, was after the interview was finished.
[20]
In my respectful view, the letter referred to
above was ambiguous and disarming. It gave the sense that the Applicant’s
eligibility was met (as indeed was previously reported to her Brother-in-Law)
when that was not the case. This would reasonably reduce the Applicant’s expected
level of preparedness for her interview. It is reasonable to expect the
Applicant would have behaved differently in terms of preparation and
expectations for the meeting had she known it would focus on her H&C
factors.
[21]
I acknowledge that the letter says that a final
decision would be made by a Visa officer. But that misses the point. The issue
is whether the Applicant should have been given some notice either in the
letters or during her interview that the issue to confront the Applicant and
the reason for convoking the interview was to assess her H&C eligibility.
In my respectful view, the Applicant was not treated fairly.
[22]
There are other issues. One is that the Decision
letter makes no reference to the Applicant’s complete financial dependency on her
Brother-in-Law, with whom she had lived for the past 14 or 15 years. While I
appreciate that there is no obligation to deal with every fact, in my view this
particular fact was the essence of the Applicant’s H&C claim. In this case,
the Applicant’s entire “family” (for all
practical purposes) was leaving the country while she was being left behind. In
addition, the letter says her “work background”
was considered, but the record is clear: she had no work background outside the
house to consider: I am left to wonder if this was overlooked. Again, I
appreciate that judicial review is not a treasure hunt for errors, but the fact
the Applicant never worked outside the house is surely bound up with the
essence of her H&C claim, which was in turn based on her complete
dependency on her Brother-in-Law. I am not persuaded this was reasonably
assessed. I will not say more, having regard to the redetermination to take
place in this case.
VI.
Certified question
[23]
Neither party proposed a question to certify,
and none arises.
VII.
Conclusion
[24]
The application for judicial review is granted
and the matter remanded for redetermination, no question is certified and there
is no order as to costs.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The application for judicial review is granted.
2.
The decision of the Visa Officer dated March 17,
2016 is set aside.
3.
The matter is remanded to a different decision-maker
for redetermination.
4.
No question is certified.
5.
There is no order as to costs.
"Henry S. Brown"
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