Date:
20061005
Docket: IMM-6945-05
Citation: 2006 FC 1190
[ENGLISH TRANSLATION]
Fredericton, New Brunswick, October
5, 2006
PRESENT: The Honourable Mr. Justice
Martineau
BETWEEN:
SIOBHAN DUPLESSIS
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1] The applicant is
challenging the legality of a decision by an immigration officer on November 2,
2005 refusing her application for an exemption from a permanent resident visa
based on humanitarian and compassionate considerations.
[2]
The applicant is originally from Saint Lucia. She arrived
in Canada in 1995 at 20 years old. She is now 31 years old. Since 1995, she has
been working as a nanny, caring for two children who are now 13 and 14 years
old. She is working without a work permit. On May 28, 2013, the applicant filed
an application for an exemption from the obligation to obtain a permanent
resident visa from outside Canada based on humanitarian and compassionate
considerations. On November 2, 2005, the immigration officer issued a negative
decision.
[3]
In her decision, the immigration officer noted that
the applicant was able to develop meaningful ties to Canadian society. The
applicant has also always worked, had volunteered with several organizations,
had made many friends, and had no criminal record. The officer noted, however,
that the applicant’s establishment in Canada was the result of a personal
choice, not circumstances beyond her control. Indeed, the applicant can still
return to her country of origin as she did in 1996 and file her residency
application there.
[4]
The officer also noted that the applicant has
developed significant attachment to the family who employs her and with her
three-year-old god-daughter. However, the applicant could remain in contact
with them, particularly through letters, telephone conversations, the Internet
and visits. In that regard,
the applicant did not submit any information to suggest to the officer that her
departure would have any negative impact on the development of her employer’s
two children or her god-daughter.
[5]
The applicant also mentioned that two members of her
family are Canadian citizens: her sister and a cousin. However, the officer
noted that the applicant did not provide any information on the possible
difficulties that would result from a separation from those two individuals. As
well, the applicant’s mother and father still live in Saint Lucia.
[6]
The officer also noted that the applicant does not
seem to have taken any steps to resolve her situation prior to 1999, when she
met with an immigration advisor to begin steps in that regard. That advisor
allegedly told her that he had sent a residency application to immigration
authorities, when that was not the case. The applicant filed a complaint
against the immigration advisor with the police in 2004. The officer mentioned
that the applicant did not explain how those events could impact her ability to
file a residency application from abroad. The officer also noted that she had
no indication that the applicant needed to be in Canada for any proceedings
following the complaint she filed.
[7]
In conclusion, after considering all the
elements submitted to her, the officer was not satisfied that the difficulties
she would face in filing her application for permanent residence from outside
Canada are “disproportionate, unusual or undeserved”. She therefore refused the
application for exemption based on humanitarian and compassionate
considerations, leading to this application for judicial review.
[8]
The parties agree that the standard of review
in such a case is reasonableness simpliciter (Baker v. Canada
(Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817, at paras 57 to 62; Canada (Director of Investigation and Research) v.
Southam Inc., [1997] 1 S.C.R. 748, at para. 56).
Clearly, if there is a breach of a principle of natural justice or procedural
fairness, that is enough to set aside the decision and refer the matter to
another decision-maker.
[9]
Although the following arguments were not necessarily
presented in this order by counsel for the applicant, it is submitted that:
first, the officer failed to exercise her jurisdiction by basing her refusal on
the criteria set out in chapter IP-5 of the guidelines (which refer to “disproportionate,
unusual or undeserved difficulties if the application were filed from outside
Canada”); second, the officer drew conclusions that were unreasonable or were
not based on the evidence; and, third, the duty to act fairly was such that the
officer should have interviewed the applicant.
[10]
First, before examining the three grounds cited above,
the affidavit from the applicant’s employer must be dismissed, as an
application for judicial review does not usually accept new evidence.
1.
Did the immigration officer fail to exercise her jurisdiction by basing her
refusal on the criteria mentioned in the Directives?
[11]
One of the cornerstones of the Act is that, before
arriving in Canada, individuals who wish to live here permanently must file an
application from outside Canada and be
Immigration
and Refugee Protection Act, S.C. 2001, c. 27, allows the Minister to process and approve permanent
residency applications filed from inside Canada in the following cases:
[12]
The applicant submits that decisions by
immigration officers under subsection 25(1) of the Act are currently “governed”
by issued guidelines IP-05, but that the Minister can modify from time to time
as he sees fit, as they are not contained in a regulatory text.
[13]
Paragraphs 5.1, 6.7 and 6.8 read as follows:
Applicants
bear the onus of satisfying the decision-maker that their personal
circumstances are such that the hardship of having to obtain a permanent
resident visa from outside of Canada would be
(i)
unusual and undeserved or
(ii)
disproportionate.
Applicants may present whatever facts
they believe are relevant.
Unusual
and undeserved hardship is:
the hardship (of having to apply for a
permanent resident visa from outside of Canada) that the applicant would face
should be, in most cases, unusual, in other words, a hardship not anticipated
by the Act or
Regulations;
and
the hardship (of having to apply for a
permanent resident visa from outside Canada) that the applicant would face
should be, in most cases, the result of circumstances beyond the person’s
control.
Humanitarian and compassionate grounds
may exist in cases that would not meet the “unusual and undeserved” criteria
but where the hardship (of having to apply for a permanent resident visa from
outside of Canada) would have a disproportionate impact on the applicant due to
their personal circumstances.
[14]
In this regard, the applicant submits that, although the guides and directives
are valid and useful, they must not limit the discretion of the decision-maker.
Neither the former subsection 114(2) of the Immigration Act,
R.S.C. 1985, c. 1-2, nor the new subsection 25(1) of the Act refer to
disproportionate, unusual or undeserved difficulties”. In this case, the
applicant submits that the immigration officer only examined the issue of
whether she should grant or refuse an exemption for humanitarian and
compassionate considerations based on the criteria set out above. It is thus
clear that she abandoned her discretion under section 25 of the Act (see Thamotharem v. Canada
(Minister of Citizenship and immigration), [2006]
3 F.C.R. 168 (F.C.), 2006 FC 16, at paras. 106-116).
[15]
That ground for review must be dismissed for
the following reasons.
[16]
First, I note that the applicant does not question the
validity of the guidelines adopted by the Minister. In Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 R.S.C. 817, L’Heureux-Dube J.
commented as follows on the guidelines, at para 72:
As described above, immigration officers
are expected to make the decision that a reasonable person would make, with
special consideration of humanitarian values such as keeping connections
between family members and avoiding hardship by sending people to places where
they no longer have connections. The guidelines show what the Minister
considers a humanitarian and compassionate decision, and they are of great
assistance to the Court in determining whether the reasons of Officer Lorenz
are supportable. They emphasize that the decision-maker should be alert to
possible humanitarian grounds, should consider the hardship that a negative
decision would impose upon the claimant or close family members, and should
consider as an important factor the connections between family members. The
guidelines are a useful indicator of what constitutes a reasonable
interpretation of the power conferred by the section, and the fact that this
decision was contrary to their directives is of great help in assessing whether
the decision was an unreasonable exercise of the H & C power.
[17]
In Dhillon
v. Canada (Minister of citizenship and Immigration), 2005 FC 1067,
the Court examined the decisions by the immigration officers under subsection
25(1) in light of the guidelines. The Court recognized that they gave
immigration officers a lot of flexibility in assessing evidence regarding the
expressions used in them. Gibson J. noted the following at para 22:
Counsel for the
Applicant urged that the officer, on cross-examination on her affidavit, failed
to provide effective responses to questions regarding the interpretation of “unusual
hardship”, “undeserved hardship” and “disproportionate hardship” as used in the
Ministerial guidelines. Counsel herself acknowledged at question 24 in the
transcript of examination of the officer that she knew “... the terms are not
really very well defined.” Indeed, they are not “well defined”. I am satisfied
that the Officer was consistently correct in emphasizing that the terms are not
absolute, that the relative weight to be given to the evidence bearing on the
various terms is at the discretion of the officer applying them to the facts of
a given application, and that it is the officer himself or herself who is left
with the responsibility of determining their application, once again on the facts
of each individual application, and the relative weight to be given to them. I
have great sympathy for the position taken by the officer under
cross-examination and find that she made no reviewable error by failing to
understand the guidelines and applying them on the facts of this application.
[18]
In my view, the immigration
officer did not commit a reviewable error in relying on the Minister’s
guidelines. They are a useful guide in exercising the ministerial discretion
that is delegated in this case to the immigration officer (Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R.
(3d) 206; Pashulya v. Canada (Minister of Citizenship and
Immigration) (2004), 257 F.T.R. 143, 2004 FC 1275).
[19]
In this case, the applicant is unable to indicate what
other criteria, if any, the immigration officer should have considered in
addition to or in the place of the criteria found in the guidelines. The
applicant has not satisfied me here that it was unreasonable for the
immigration officer to examine whether the difficulties are unusual,
disproportionate or undeserved >> as part of an application for a visa
exemption based on humanitarian and compassionate considerations. Consequently, the allegation made here by the applicant
thus seems to me to be more theoretical than practical, as the true issue in this
case is to determine whether the decision in question is reasonable under the
circumstances, which leads me to examine the applicant’s second argument.
2. Did the
immigration officer reach draw conclusions that were unreasonable or not based
on the evidence?
[20]
The applicant submits that, given the lack of
communication with her, the immigration officer drew gratuitous and
unreasonable conclusions that were not based on the information before her,
which constitutes a reviewable error (Ramprashad-Joseph
v. Canada (Minister of Citizenship and immigration), 2004 FC 1715).
[21]
In that regard, the applicant submitted that the
conclusion that there were no disproportionate difficulties for a person who
has lived in Canada for more than 10 years and no longer has any ties to her
country of origin, drawn without truly communicating with the applicant, is
arbitrary and constitutes an overriding error. She also submits that she could
not help her mother and brother if she returns to Saint Lucia. As well,
contrary to what the immigration officer wrote in her reasons, it would be
almost impossible for the applicant to remain in contact with her employer’s
family due to delays in mail delivery and the high costs associated with
telephone and Internet costs. She also submits that the immigration officer
incorrectly concluded that she did not need to be in Canada for any proceedings
following the complaint filed against the immigration advisor.
[22]
Despite all the sympathy that this Court may have for
the applicant, who may be placed in a difficult situation if a removal order is
carried out, this Court cannot substitute its judgment for that of the
decision-maker. The decision to grant a visa exemption is a discretionary
decision and the immigration officer considered all relevant factors, including
the issue of the best interest of any child affected by the decision. In my view, the evidence and the reasons provided by the
immigration officer reasonably support her conclusion. The immigration officer’s
decision is essentially factual. After reviewing the record, the conclusions in
this case are not arbitrary or capricious. The officer’s reasons for decision
show that she considered all the evidence.
[23]
It is true that the applicant submitted two letters
from her employer that mention that the family considered her to be a member of
their family, but her employer did not elaborate on the effect that the applicant’s
departure would have on their two children. In the letter she wrote in support
of her application for a visa exemption, the applicant did not emphasize the
best interests of her employer’s children and did not submit many details in
that regard.
[24]
The applicant also did not indicate that she was
providing for the financial needs of her family in Saint Lucia. The only thing
she mentioned in this regard was as follows: “In august [sic] 1996,1 returned
to canada [sic]. Lucky for me, I had not been replaced [sic] job wise. The kids
were delighted. I worked and was no longer stressed. I was even able to send
money every now and then back to my mother in St-Lucia to help her and my
little brother out” (Certified Tribunal Record, at p. 37). The applicant did
not mention that she continues to send money or that she is currently financially
supporting her family.
[25]
Finally, although submitted as evidence the
event report from the Montréal Police, dated May 19, 2004, she did not submit
evidence that she needs to be in Canada for proceedings related to that
complaint.
[26]
Essentially, the applicant submits that the conclusion
that there are no disproportionate difficulties for a person who has lived in
Canada for more than 10 years and who no longer has any ties to her country of
origin, drawn without really communicating with the applicant, is arbitrary and
constitutes an overriding error. Although the applicant will face difficulties,
they are not deemed to be “disproportionate and unusual or undeserved”. The
officer’s assessment of the difficulties is consistent with the usual criteria,
seems reasonable in the circumstances, and stands up to a careful review by the
Court (see Kawtharani
v. Canada (Minister of Citizenship and Immigration), 2006 FC 162, at
para. 34). That leaves an examination of the applicant’s final argument,
regarding the fact that she was not called to an interview prior to the refusal
decision.
3. Did the
duty to act fairly mean that the officer should have interviewed the applicant?
[27]
According to the affidavit signed on December 19,
2005, by Diane Belanger, the former counsel charged with filing the applicant’s
application for permanent residency, the authorized representatives of the
Department of Immigration made certain statements at a meeting in November 1995
that created a legitimate expectation of being called to an interview in cases
similar to that of the applicant.
[28]
Thus, according to the minutes of the meeting in
question, as part of an application for permanent residency filed in Canada
based on humanitarian and compassionate considerations, an interview would not
necessarily be granted in cases where there is no benefit in holding an
interview, including cases of technical refusals or in the event of
inadmissibility on the grounds of criminality. On the other hand, the
immigration officer could invite the client in situations [translation] “in
which judgment must be used (Minutes: CIC-NGO Working Group on Service Quality,
November 29, 1995, document submitted as Exhibit DB-1).
[29]
The applicant also submits that the policy cited above
was followed in Montréal and that it was not officially changed. Ms. Belanger
also mentioned that, over the course of her career, in about a hundred similar
cases in which she was counsel, there were only two negative decisions that
were not preceded by an in-person interview. That therefore creates a
legitimate expectation of having an interview, within the meaning of Baker, above, at para
26 and Congrégation des
témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R.
650, 2004 SCC 48, at para. 10.
[30]
Moreover, in her affidavit dated April 18, 2006, Ms.
Belanger states that a telephone conversation with the Director at CIC in
Montréal in March 2006 confirmed her suspicions that the elimination of
interviews at CIC in Montréal is dictated by contingencies related to administrative
convenience, and that it is the backlog of cases, rather than considerations
related to a reassessment of the case, that now determine whether an interview
is held.
[31]
The applicant also submits that, when an officer is
prepared to draw unfavourable conclusions despite the documentary evidence,
even when the interest of children is raised, there should be communication
with the applicant. In this case, the immigration officer only spoke with the applicant
for five minutes by telephone and the questions that she asked were not related
to the essential elements of the applicant’s case.
[32]
In my view, there was no
breach of the rules of procedural fairness.
[33]
I agree with the respondent, who submits that the applicant
is attempting to shift the burden of proof in arguing that the officer should
have contacted the applicant to ensure that she had nothing to add.
[34]
Moreover, according to jurisprudence, the applicant
does not have an absolute right to an interview and is also required to provide
the decision-maker with all facts relevant to her application. In Owusu v. Canada (Minister of
Citizenship and Immigration) (F.C.A.), [2004] 2 F.C.R.
635, 2004 FCA 38, at para 8, Evans J. stated:
H & C applicants have no right or
legitimate expectation that they will be interviewed. And, since applicants
have the onus of establishing the facts on which their claim rests, they omit
pertinent information from their written submissions at their peril. In our
view, Mr. Owusu’s H & C application did not adequately raise the impact of
his potential deportation on the best interests of his children so as to
require the officer to consider them.
[35]
It is true that the decision in Owusu was
rendered under the former Immigration Act, R.S.C. 1985, c 1-2,
which is now repealed. However, I also note that the Court has referred to that
decision in interpreting section 25 (see Hussain v. Canada (Minister of
Citizenship and Immigration, 2006 FC 719, at paras. 10-11).
[36]
Regarding the past practice of granting
interviews, that aspect was addressed by this Court in Etienne v. Canada
(Minister of Citizenship and Immigration), 2003
FC 1314. Pinard J. wrote the following at para 9:
There is nothing in the
record that suggests that the officer had affirmed, implicitly or explicitly,
that the applicants would have an interview. Nothing in the evidence
establishes the existence of a systematic practice of granting an interview. It
is perhaps true that, in the past, an interview had always been granted to the
applicants’ former counsel in other cases. However, this does not establish a “legitimate
expectation” of an interview. The caselaw of this Court is consistent that an
interview is not required to ensure procedural fairness in processing
applications for visa exemptions for humanitarian considerations (see, for
example Cheema (Litigation Guardian) v. Canada (Minister of Citizenship and
Immigration), (June 4, 2002), IMM-2187-01, 2002 FCT 638 (CanLII), Ming
v. Minister of Citizenship and Immigration (November 15, 2001),
IMM-5953-00, 2001 FCT 1253 (CanLII), and Sellakkandu v. Minister of
Employment and Immigration (October 13, 1993), 92-T-2029).
[37]
Based on the evidence on record, I am satisfied
that the applicant had a reasonable opportunity to present her case. I
therefore conclude that the immigration officer had no duty to grant the
applicant an interview.
[38]
For all these reasons, the application for
judicial review must be dismissed.
[39]
The applicant submitted the following two questions for certification:
1.
Can an immigration officer validly refuse an
application for permanent residency based on humanitarian and compassionate
considerations, filed in Canada under section 25 of the Immigration and Refugee Protection
Act, solely because the applicant’s departure would not
cause disproportionate, unusual or undeserved difficulties, as required by
chapter IP-5 of the guidelines from the Minister of Immigration?
2.
Can circumstances related to administrative
contingencies, such as backlogs in the processing of cases — which also vary
from one CIC office to another — justify the decision or practice of offering
or not offering an interview to review an application for permanent residency
based on humanitarian and compassionate considerations, filed in Canada under
section 25 of the Immigration
and Refugee Protection Act?
[40]
The first question is purely theoretical and is not a determining factor given
my conclusion that, following a very careful review of the reasons given by the
immigration officer, the decision to grant a visa exemption for humanitarian
and compassionate considerations seems reasonable under the circumstances. The
second question is clearly factual and raises no questions of general
importance.
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