Date: 20171102

Docket: IMM-1275-17

Citation: 2017 FC 984

[ENGLISH TRANSLATION]

Montréal, Quebec, November 2, 2017

PRESENT: The Honourable Mr. Justice Shore

JUDGMENT AND REASONS

I.                    Nature of the Matter

[1]               This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA] against a decision rendered on March 6, 2017, by a Canada Border Services Agency [CBSA] officer. In that decision, the officer found that the applicant’s refugee claim could not be referred to the Immigration and Refugee Board’s Refugee Protection Division [RPD] in accordance with paragraph 101(1)(e) of the IRPA.

II.                 Facts

[2]               The applicant is a 42-year-old citizen of Haiti.

[3]               On September 21, 2016, the applicant and her husband, also a citizen of Haiti, left Haiti and arrived in the United States on visitor visas. The couple claimed refugee protection in the United States, stating that they feared for their lives in Haiti because of her husband’s involvement in a political party.

[4]               On March 4, 2017, while still in the United States, the spouses entered Canada through the Saint-Bernard-de-Lacolle port of entry. They filed a refugee claim under the Safe Third Country Agreement [Agreement] between Canada and the United States without waiting for a final decision on their refugee claim filed in the United States.

[5]               On March 6, 2017, during her interview with the CBSA officer, the applicant stated that she had her mother, Ms. Marie Hémène Henry, a permanent resident, and her half-brother, Mr. Pierre Antoine Laloi, a permanent resident, in Canada.

[6]               The officer refused to admit the refugee claim because he was not satisfied that the applicant was able to prove that she was related to the above-noted individuals within the meaning of section 159.5 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]. The same day, an exclusion order was issued against the applicant by the Minister’s delegate under section 228 of the IRPR following the inadmissibility report completed by the CBSA officer under subsection 44(1) of the IRPA.

III.               Decision

[7]               On March 6, 2017, the officer found that the refugee claim was ineligible and could not be referred to the RDP pursuant to paragraph 101(1)(e) of the IRPA.

[8]               Based on information gathered during the interview with the applicant, the officer recorded the reasons for his refusal to allow the applicant’s refugee claim in the Global Case Management System [GCMS] noting, among other things, that the applicant stated that she had a half-brother and mother in Canada. Following checks in the GCMS, these individuals, whom the applicant claimed were family members, apparently did not name the applicant in their refugee claim when they arrived in Canada. According to the applicant, this omission was due to the fact that the applicant and her half-brother have a different father.

[9]               The officer also noted inconsistencies between the applicant’s and her husband’s version of the facts regarding the period during which Ms. Henry allegedly lived with the couple in Haiti. In addition, the applicant reportedly told the officer that she did not have any memory of her father because she was too young to remember the circumstances surrounding his death in 2004. Yet, the officer noted that the applicant was 29 years old when her father died. Finally, the GCMS showed that the applicant and her husband had applied for Canadian visas and that, in those applications, the couple stated that they were visiting Mr. Pierre Laloi, a “friend of the family.”

[10]           For these reasons, the officer found that the applicant did not have any family in Canada. It is this decision that is the subject of this application for judicial review.

IV.              Issues:

[11]           The issues are as follows: 

1.      Did the officer violate the principles of natural justice and procedural fairness?

2.      Is the officer’s decision reasonable?

[12]           The standard of review applicable to decisions rendered by immigration officers that a refugee claim filed in Canada under the Agreement is ineligible is the reasonableness standard (Biosa v Canada (Public Safety and Emergency Preparedness), 2014 FC 431 at para 17; Dunsmuir v New Brunswick, 2008 SCC 9 at para 51 [Dunsmuir]). The Court is therefore not required to intervene if the officer’s decision falls within a range of possible and acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, supra, at para 47).

V.                 Relevant Provisions

[13]           The following provisions of the IRPA are relevant to the case at hand:

[14]           The following provisions of the IRPR are also relevant:

VI.              Analysis

[15]           For the reasons that follow, this application for judicial review is dismissed.

A.                 Did the officer violate the principles of natural justice and procedural fairness?

[16]           The applicant argues that the officer erred by recording in his letter the number of the application filed by the applicant instead of providing the written reasons for his refusal. In addition, the officer allegedly failed to specify the paragraph corresponding to the applicant’s situation, namely paragraph 101(1)(e) of the IRPA. The officer had a duty to justify and substantiate his decision to allow the applicant to understand the merits of his decision and defend herself with full knowledge of the facts. The officer’s decision is unintelligible.

[17]           The respondent, on the other hand, finds that there was an inadvertent clerical error in the letter sent to the applicant because the reasons for the decision are summarized in the applicant’s application number. The respondent submits that this certainly does not change the substance of the matter. The respondent submits, however, that the notes taken by the officer during the interview with the applicant, which are recorded in the GCMS, may be considered as reasons in support of a decision (Alkhairat v Canada (Citizenship and Immigration), 2017 FC 285 at para 16).

[18]           The Court considers that the officer’s notes in the GCMS provide sufficient detailed reasons to satisfy the obligation of procedural fairness, while the GCMS notes sent to the applicant satisfy the obligation to provide reasons. In fact, the Supreme Court of Canada held that when no other documents indicate the reasons for the decision, the officer’s notes should be considered, by inference, as the reasons for the decision (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 44). Although the officer was able to refer to paragraph 101(1)(e) of the IRPA, there is no doubt that the decision is still understandable, and this provision of the IRPA is the only one that could apply in the case at hand. The notes in the GCMS and the ineligibility letter in response to the refugee claim, considered together, sufficiently reflect the reasons for the decision and satisfy the requirements of natural justice. The Court finds that the officer’s decision is justified, transparent, and intelligible. (Dunsmuir, supra, at para 47).

VII.            Is the officer’s decision reasonable?

[19]           According to the applicant, the officer should have allowed the refugee claim because the applicant’s mother and half-brother are permanent residents of Canada. The applicant claims that she told the truth about being related to these individuals. The applicant even provided the officer with copies of her mother’s birth certificate and her parents’ marriage certificate.

[20]           The respondent, on the other hand, submits that the officer’s decision is reasonable. The respondent adds that Ms. Henry’s and Mr. Laloi’s affidavits, filed on August 31, 2017, cannot have an impact in the context of this application. Only the evidence before the administrative decision-maker may be considered (Osagie v Canada (Citizenship and Immigration), 2017 FC 635 at para 8).

[21]           The respondent recalls that the couple lived in the United States for approximately six months and applied for refugee status (application still pending) before entering Canada. The officer would have been correct in finding that there was no relation between the applicant and Mr. Laloi and Ms. Henry, in light of all the evidence.

[22]           Based on the evidence and the information in the applicant’s file, as well as on the officer’s notes in the GCMS, the Court finds that the officer’s decision was reasonable. Specifically, the applicant was unable to prove that she had family members in Canada, which would have allowed her to benefit from one of the exceptions in sections 159.1 to 159.7 of the IRPR.

[23]           Although the officer’s decision is brief and the reasons are in the GCMS notes, the Court is satisfied that “that does not impugn the validity” (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16). For these reasons, the Court finds that the officer’s decision was reasonable. The officer’s decision falls within a “range of possible acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, supra, at para 47).

VIII.         Conclusion

[24]           This application for judicial review is dismissed.

[25]           The style of cause is amended to reflect the correct respondent, i.e. the Minister of Public Safety and Emergency Preparedness.

JUDGMENT in IMM-1275-17

THE COURT’S JUDGMENT is that the application for judicial review is dismissed. There is no question of general importance to be certified.

“Michel M.J. Shore”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

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