Date: 19980910
Docket: IMM-2380-97
BETWEEN:
ELIZABETH PEREZ,
HEYLEEN LEONARDO PEREZ,
YEIMY LEONARDO PEREZ and
ARLENE LEONARDO PEREZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision pursuant to subsection 114(2) of the Immigration Act1 refusing to grant an exemption on humanitarian and compassionate grounds from the application of subsection 9(1) of that Act which requires that persons seeking landing in Canada acquire a visa outside Canada. In summary, the decision refused the applicants" application for landing from within Canada on humanitarian and compassionate grounds. The decision is dated the 3rd of September, 1997 and represents a confirmation, after consideration of "new information", of an earlier decision dated the 20th of May, 1997.
[2] Elizabeth Perez, (the "principal applicant"), is a citizen of the Dominican Republic and a national of Guatemala. The other applicants are the principal applicant"s children. They are citizens of Costa Rica. All four applicants arrived in Canada, together with the principal applicant"s husband, from Guatemala, in 1990. They claimed Convention refugee status based primarily on the ground that the principal applicant"s husband had become persona non grata with persons implicated in drug trafficking in Guatemala. The principal applicant"s husband died, under suspicious circumstances, in an automobile accident in 1991. The family"s Convention refugee claim thereafter fell into abeyance and, eventually, it was discovered the file had been lost. In 1995, a new Convention refugee claim file was opened for the surviving members of the family.
[3] In 1992, a first application for landing from within Canada on humanitarian and compassionate grounds was refused. On the 9th of July, 1997, the renewed Convention refugee claim was also denied, primarily on the ground that the applicants did not have to return to Guatemala given the principal applicant"s citizenship in the Dominican Republic and the citizenship of her three children in Costa Rica.
[4] The principal applicant was interviewed in connection with the families" second application for landing from within Canada on humanitarian and compassionate grounds on the 17th of February, 1997. The officer who conducted the interview, the same officer who took the May, 1997 negative decision and the September, 1997 decision now under review, recorded in her notes of the interview what amounts to the rationale for her decision. She noted that the applicants regard Canada as their home and wish to stay because:
They want to have a new live.
The officer notes that the applicants have no family ties to Canada while the principal applicant"s "extended family members" reside in the Dominican Republic. The officer focusses particularly on the fact that the applicants had been on social assistance from the time of their arrival in July of 1990 to the date of the interview. She notes:
Even though she [the principal applicant] has had employment authorizations she has been unable to secure full-time employment which shows she is unable to support her family without reliance on social assistance. In my opinion, she has not proven a potential to be self-reliant and self-sufficient. ... The [principal applicant] and her children will be in receipt of social assistance for many years to come. ... Even though [the principal applicant] has been in CDA for six years, it appears she is only now upgrading her skills by attending a computer course from Sept to July /97. ... Does not have a history of stable employment in Canada. Prior to her spouses" death, it appears she relied upon him totally having had no previous work experience. Employment in CDA has consisted of domestic work wherein she earns approximately $300 per month. ...
Decision: Mrs. Perez has not shown exceptional good evidence of establishment and long-term financial stability. Refusal based on above reasons.
[5] Effective February 24, 1997, one week after the interview, the principal applicant obtained full-time work as a home-visitor on behalf of Visiting Home Makers. The respondent was advised of this new development by a letter dated the 4th of March, 1997. It was acknowledged on behalf of the respondent that this new development was not taken into account when the May, 1997 decision was finalized and communicated to the applicants. In the result, the respondent agreed to reopen. An officer of the respondent transmitted the following message to counsel for the applicants:
The application will be reviewed and another decision will be issued.
[6] Counsel for the applicants made new submissions which included the following sentence:
I anticipate, and would request, that the reconsideration will be carried out by someone other than Ms. Clark. [The immigration officer who conducted the February, 1997 interview and signed the May, 1997 refusal letter].
[7] The same immigration officer, that is to say Ms.Clark, conducted the review. In the notes that constitute the "rationale" used in arriving at the decision that is now under review, she wrote:
[The principal applicant] and her family have nuclear family ties abroad. They have relied on social assistance for many years and she has only recently commenced full-time employment. In my opinion, she has not shown exceptionally good evidence of establishment and long-term financial stability. It is apparent [the principal applicant] has no family support in Canada on which to depend upon, should the need arise, and it [is] reasonable to assume she may find herself in an unlikely position where she may have no recourse but to rely upon public support.
[8] In the Amended Memorandum of Argument filed on behalf of the applicants, counsel identified four issues in the following terms:
Has the respondent breached the rules of natural justice in allowing the officer who rendered the initial negative decision to carry out the reconsideration, despite the Applicants" request that it be a different officer, thereby creating a reasonable apprehension of bias?
Did the respondent fail to comply with the Applicants" legitimate expectation that the reconsideration would be carried out by a different officer?
Did the respondent err in law in imposing on the Applicants an impossible standard of proof regarding self-sufficiency in the future;
Did the respondent err in law by ignoring or overlooking evidence regarding the nature of the Applicants" family relationships outside Canada?
[9] On the first issue, reasonable apprehension of bias, it is clear that counsel for the applicant and the respondent"s officials had different perceptions as to how the review that would result in the second decision, that now under review, would be carried out. The test for reasonable apprehension of bias is well settled. In Arthur v. Canada (Minister of Employment and Immigration),2 Mr. Justice MacGuigan wrote:
| |
It was common ground that the applicable principle of law as to the reasonable apprehension of bias was that stated by deGranpré J. in dissent in [1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at pages 394-395, and adopted by this court in MacBain v. Lederman, [1985] 1 F.C. 856 [at page 867]: |
|
| |
"[W]hat would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly." |
|
| |
...The grounds for his apprehension must... be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience". |
|
Where the double participation in decision-making has been on the part of a judge, the principal has not seemed to pose any great difficulty.
[10] Against the foregoing test, I find no basis on which to conclude that there is, on the facts of this matter, a basis for a reasonable apprehension of bias.
[11] As to the second issue, legitimate expectation, once again I am satisfied that the applicants cannot succeed. In National Anti-poverty Organization v. Canada (Attorney-General)3, Mr. Justice Stone wrote at page 708:
| |
The respondents seek to rely on the evolving doctrine of "reasonable expectation" or, as some courts have called it, "legitimate expectation". It is nowhere better described than by Lord Fraser of Tullybelton in Council of Civil Service Unions v. Minister for the Civil Service, [1985] A.C. 374 (H.L.), at page 401: |
|
But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege and, if so, the courts will protect his expectation by judicial review as a matter of public law. This subject has been fully explained by my noble and learned friend, Lord Diplock in O"Reilly v. Mackman, [1983] 2 A.C. 237 and I need not repeat what he has so recently said. Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue.
[12] No evidence of an express promise given on behalf of the respondent, a public authority, is before this Court. Indeed, the evidence is to the contrary. Further, there is no evidence before the Court of the existence of a regular practice of assigning a different immigration officer to conduct a review, which practice the applicants could reasonably expect the respondent to continue.
[13] I will consider the third and fourth issues raised on behalf of the applicants together. The immigration officer"s handwritten notes of the interview with the principal applicant and her counsel that took place on the 17th of February, 19974 indicate a clear understanding of the negative family relationships that the principal applicant had in the Dominican Republic. The notes refer to "fear of unknown support"; of no place for the applicants to return to; to the principal applicant having left in 1976; to negative relationships on the part of the principal applicant with her mother and brother; to the lack of contact between the principal applicant"s children and their father"s family; and to the fact that the late father"s family disowned him and the children. Despite this, the notes constituting the rationale for the decision under review indicate that the principal applicant and her family have nuclear family "ties" abroad. The evidence that was before the decision-maker simply cannot be said to support the existence of family "ties" in the Dominican Republic.
[14] Further, in the rationales for both decisions taken by the same immigration officer, strong concern is expressed regarding the principal applicant"s likelihood of becoming self sufficient on behalf of both herself and her children. The evidence that was before the decision-maker clearly indicates that the principal applicant was without a work permit until the autumn of 1995. Prior to that time, the principal applicant upgraded her English and involved herself in extensive volunteer work while at the same time carrying out her home-making and parental responsibilities. On receipt of a work permit, the principal applicant commenced to develop remunerated employment experience through part-time employment. As noted by the decision-maker, she continued to upgrade her skills by pursuing a computer course. Her part-time experience in employment can be assumed to have contributed to her eventual success in obtaining full-time employment.
[15] In Chan v. Canada(Minister of Citizenship and Immigration)5, Madame Justice Reed wrote at page 63:
In Shah v. Minister of Employment and Immigration(1994), 170 N.R. 238 (F.C.A.), it was held that the duty of fairness requirements for a decision under s. 114(2) of the Immigration Act are minimal. At the same time, I understand Mr. Justice Hugessen"s comments in that case to include reviewability of such decisions on the ground that the decision-maker ignored relevant evidence or took into account irrelevant considerations. He indicated that in order to succeed the applicant must show "that the decision-maker erred in law [or], proceeded on some wrong or improper principle...". The ignoring of significant relevant evidence has always been considered to be an error of law or as demonstrating that the decision-maker proceeded on the basis of a wrong principle.
[16] On the facts before her, Madame Justice Reed continued at page 65:
...in the present case, no reference was made, either in the recommendation section of the notes or in the preceding text, to the applicant"s present relationship with her family, her reconciliation with its members. The notes leave the impression that she is still estranged from her family. The length of time she has lived in this country (during most of her adult life), her immediate family"s presence here, her re-integration as part of that family unit are not referred to in the recommendation section of the notes. I must conclude that the recommending officer based his decision on a misunderstanding of the evidence - the present relationship of the applicant with her family was overlooked.
[17] While the fact situation here is very different, I am satisfied that the foregoing applies. No reference was made in the decision-maker"s notes leading to the decision here under review to the principal applicant"s present and long-standing negative relationship with her family in the Dominican Republic or to the equally negative relationship between she and her children and her late husband"s family in the Dominican Republic. The notes, by reference to "...nuclear family ties abroad..." imply a positive family relationship which, on the evidence, simply does not exist. Similarly, her ongoing efforts since the death of her husband to prepare herself for employment in Canada that would allow her to, at least partially, support herself and her children, her dedication to volunteer work while she had no work permit and her equal dedication to part-time employment after obtaining a work permit are all either minimized or ignored.
[18] As in Chan, I must conclude that the decision-making officer based her decision now under review on a misunderstanding of the evidence. In so doing, the decision-maker erred in a reviewable manner.
[19] For the foregoing reasons, this application for judicial review will be allowed. The decision of the immigration officer that is under review is set aside and the matter is referred back to the respondent for redetermination by a different immigration officer.
[20] Neither counsel recommended certification of a question. No question will be certified.
___________________________
Ottawa, Ontario
September 10, 1998
__________________
1 R.S.C. 1985, c. I-2
2 [1993] 1 F. C. 94 (C.A.)
3 [1989] 3 F.C. 684 (C.A.)
4 Application Record, page 155 A
5 (1994), 87 F.T. R. 62
Email this Content